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<br />. <br /> <br />. <br /> <br />it', . <br />.._.) .;.. <br /> <br />-33- <br /> <br />" <br /> <br />water of a wel I withdrawn by the 1934 Act.57/ <br />to the reserved right doctrine and holdingS-of <br />J therefore overrule that Opinion. <br /> <br />This opinion Is contrary <br />the Supreme Court 58/ and <br /> <br />."::~~ <br /> <br />The Departmental regulations relative t~ this sectIon are contained In <br />30 CFR, Part 241, These regulations provide that once an 01 I or gas <br />wel I Is found to be valuable for water production It wi II be purchased <br />and "the land subdivision which contains the wel I wi I I, If subject there- <br />to. be held to be withdrawn by Executive Order of Aprl I 17, 1926, and <br />reserved for public use pursuant to Section fO of the Act of December 29, <br />1916."59/ <br /> <br />Lands containing these types of water wells are actually hybrids. owing <br />their reserved status to the 1916 Act and the 1926 Executive Order as <br />wel I as the 1934 Act. The priority date for water uses from such a <br />source Is the date It was developed. The purposes for which the water <br />cou I d be used are stated 1 n the 1934 Act I tse I f as "agr Icu I tura I, domest I c <br />or other purposes." It Is my opinion that the term "other purposes" <br />specified In the 1916 Act Is limited by those purposes which I have <br />found established by the 1926 Order.60/ <br /> <br />Water reserved by withdrawals under the 1934 Act may also be used either <br />on or' off public lands, but only In accordance with terllls prescribed <br />by the Secretary.~/ <br /> <br />57/ OpInion of July 20. 1937 (M-28853). <br /> <br />58/ See,~. CapDaert v. United States, ~; UnIted States v. New <br />Mexico. supra. <br /> <br />-'.:.=':':~;i~ <br /> <br />59/ 30 CFR 241.5. <br /> <br />60/ See discussion on page 21, supra. The Master-Referee In Colo. 4, <br />5. 6,-SUpra, at p. 328, found that the uses which could be made of <br />the reserved water under the 1934 Act were broader than those purposes <br />encon~assed In the 1926 Order and Included (I) wi ldllfe and stockwaterlng, <br />human drln~lng. (a) flood, soil. fire and erosion control, (3) range <br />Improvement, protection and management, (4) agrIcultural and Irrigation <br />uses, (5) watershed protection and securing favorable conditions of <br />water flows and (6) recreatIonal and fish and wildlife uses. I believe <br />the same purposes are encompassed In both the 1934 Act and the 1926 <br />Order, and are narrower than the Master-Referee found with respect to <br />the former, and broader than he found with respect to the latter. See <br />note 33, supra. <br /> <br />61/ See 30 U,S.C, S 229a(c) which also gives a preference right to make <br />benef1Clat use of these waters to owner or occupant of adjacent lands, <br /> <br />._~ ""'1 <br /> <br />-,..'.' <br /> <br />. ;...-.... <br />