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Contract between the Utah Construction Company and the State of Idaho online

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University of California Berkeley



Between the Utah Construction Company
and the State of Idaho



THIS AGREEMENT, made and entered into in duplicate
this 14th day of February, 1916, by and between the STATE
OF IDAHO, party of the first part, by and through the
SKte Board of Land Commissioners of said state, said
Boarr 1 Consisting of Moses Alexander, Governor; George R.
Barker, Secretary of State ; Joseph H. Peterson, Attorney-
General ; Fred L. Huston, State Auditor, and Bernice Mc-
Coy, State Superintendent of Public Instruction ; and THE
UTAH CONSTRUCTION COMPANY, a corporation or-
ganized and existing under and by virtue of the laws of the
State of Utah, party of the second part, WITNESSETH :

THAT, WHEREAS, The Big Lost River Land and Irri-
gation Company, Limited, a corporation, did heretofore, to-
wit, on February 19, 1906, file with the State Board of
Land Commissioners a proposal for the construction of cer-
tain irrigation works for the irrigation of lands in the
Counties of Blaine, Bingham and Fremont, in said State of
Idaho, under the provisions of Section 4 of the Act of
Congress approved August 18, 1894, commonly known as
the Carey Act, and the acts amendatory thereof and the
laws enacted by the State of Idaho in pursuance of the
power granted by the said Acts of Congress, the lands being
described as Idaho State Desert Land List No. 8, comprising
79,122.06 acres, to which said proposal an amendment was
filed with the said Board on July 13, 1906 ; and,

WHEREAS, said Big Lost RiveivX-and and Irrigation
Company, Limited, did thereafter, to-wit, on November 15,
1907, file with said Board a request and proposal for the
egregation of new and additional lands, List No. 18, to the
extent of 27,022.90 acres, and the relinquishment of lands
included in said first proposal, List No. 8, to the extent of
27,194.15 acres, which second request and proposal was
granted by said Board, together with a relinquishment of
the lands, as proposed, the lands remaining after such re-
linquishment and such new and additional segregation being
78,950.81 acres, which segregations, with the exception of
certain small areas thereafter relinquished, are still intact;
and,



WHEREAS, at the request of the State of. Idaho, the
lands hereinbefore referred to, included in said List No. 18
and in said List No. 8, less the lands relinquished as afore-
said, have been, by agreement between the United States
add the State of Idaho, set apart in compliance with the pro-
visions of said Acts of Congress, the said lands being fully
described in "Schedule B" hereto attached and made a part
of this agreement ; and,

WHEREAS, the State of Idaho has also heretofore made
application to the United States for the segregation, under
the terms of the Carey Act, of State of Idaho Desert Land
List No. 52, comprising about 6807.24 acres of additional
land susceptible of reclamation from the irrigation system
hereinafter mentioned, which application is still pending be-
fore the Land Department of the United States as vet un-
approved, the land being more particularly descfioed in
said Land List No. 52, on file in the office of the Register of
the State Land Board, which is hereby referred to ; and,

WHEREAS, on the 10th day of April, 1907, the State of
Idaho, as party of the first part, did enter into a contract in
writing with the said Big Lost River Land and Irrigation
Company, Limited, for the construction of the works neces-
sary for the reclamation and irrigation of the unrelinquish-
ed lands included in said Amended List No. 8 and said List
No. 18 ; and,

WHEREAS, heretofore, to-wit, on May 27, 1909, George
S. Speer, as successor in interest of the Big Lost River Land
and Irrigation Company, Limited, did enter into a contract
with the State of Idaho, acting by and through its State
Board of Land Commissioners, whereby the said George S.
Speer bound himself to construct a system of canals, reser-
voir and irrigation works for the reclamation and irriga-
tion of certain lands therein described and referred to,
which said contract was regularly and duly assigned by said
George S. Speer to the Big Lost River Irrigation Company,
and which contract and assignment thereof are on file and
of record in the office of the Register of the State Board of
Land Commissioners of the State of Idaho ; and,

WHEREAS, the said Big Lost River Irrigation Company,
did proceed to construct canals, reservoir and irrigation
works for the purpose of storing and diverting from Big
Lost River sufficient waters to irrigate the unrelinquished
lands included in said segregation lists ; and,

WHEREAS, it has been made to appear to the satisfac-
tion of the Board that the Utah Construction Company,
party of the second part herein, has become and now is th
owner of all property, real and personal, rights, privileges
and franchises of said Big Lost River Irrigation Company

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including the property rights, privileges and franchises re-
lating to and connected with the irrigation system and works
described in the said agreement dated May 27, 1909 ; and,

WHEREAS, it further appears that said Big Lost River
Irrigation Company has entered into contracts to a large
extent with settlers upon the lands to be reclaimed to supply
said settlers with water for their lands ; and,

WHEREAS, on account of the insolvency of said Big Lost
River Irrigation Company and of the foreclosure and sale
of all its property, it has become and is unable to comply
with any of the terms of said contracts, by reason whereof
said contracts have become valueless to said settlers ;

NOW, THEREFORE, in consideration of the premises
and of the covenants and agreements herein contained, the
party of the second part agrees to construct the dam, reser-
voir and irrigation system, hereinafter referred to and de-
scribed in the manner hereinafter set forth and to the extent
of the water available to provide for the sale of shares or
water rights in said reservoir and irrigation system from
time to time, as in the manner hereinafter provided, to per-
sons applying to enter portions of the lands described in
"Schedule B" hereto attached and hereby made a part of this
contract, together with other lands which may hereafter be
segregated upon the application of the party of the second
part, its successors or assigns, and for which the said party
of the second part is or may hereafter be authorized to
furnish water ; also to the extent of the capacity of the irri-
gation works to supply water from said irrigation system
to the owners of other lands not described in said "Schedule
B" but which are susceptible of irrigation from this system,
such shares and water rights to be sold on the terms here-
inafter specified, and finally to provide the manner of trans-
fer of ownership, management and control of said irrigation
system to the purchasers of said shares or water rights as
hereinafter provided.

1.

The party of the second part shall first construct the
irrigation system in accordance with plans and specifica-
tions to be hereafter filed with the State Engineer and ap-
proved by him and by the State Land Board, said specifica-
tions to be on a scale contemplating the irrigation of about
20,000 acres, which portion of said irrigation system so
constructed, together with the lands susceptible of irriga-
tion therefrom, shall be known and is referred to herein-
after as the "First Unit" of said irrigation system. After
the completion of said "First Unit," the said party of the
second part shall, as soon as practicable and to the extent

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of the available water supply, proceed to complete said irri-
gation system in accordance with plans and specifications
to be hereafter filed with the State Engineer and approved
by him and the State Land Board, to the end that all the
lands susceptible of irrigation from said system to the
extent of the available water supply may be furnished with
water, as hereafter provided. Such additional construction
work, after the completion of said "First Unit," together
with the lands designated to be reclaimed thereby, shall be
known and is referred to hereinafter as the "Second Unit".



It shall be the duty of the said second party to file with
the State Engineer of the State of Idaho notes showing the
sites, courses and distances from angle to angle of the canals
and main laterals as soon as the same shall have been finally
determined and to furnish any further detailed specifica-
tions that may be required by said State Engineer or State
Land Board. Changes may, from time to time, be made in
the specifications by agreement between the State Engineer
and the said second party. Such changes, however, not to
impair the efficiency or durability of the works for the pur-
poses for which they are intended.

A main lateral, within the meaning of this contract, is a
lateral taken from the main line of the canal. A subordinate
lateral, within the meaning of this contract, is a lateral built
for the purposes of conducting water from a main lateral to
a point within half a mile of the place of intended use. A
coulee or draw used as a main lateral or a subordinate later-
al shall also be included within these terms.

The plans, specifications and details for the construction
of the dam, reservoirs, canals, headgates, weirs, etc., shall
be submitted to the State Engineer of the State of Idaho for
his approval prior to the further construction of any of
said works, with the right of appeal by the said second party
from his decision to the State Board of Land Commission-
ers, and the works when completed shall be in accordance
with the specifications as finally determined upon.

The party of the second part reserves the right to con-
struct any additional reservoirs, canals and dams which, in
its judgment, may hereafter become necessary; provided
such reservoirs, dams and canals shall be constructed in a
manner that shall meet with the approval of the State Engi-
neer and State Land Board.

The lateral system will be so designated and located as
to supply to the land at least thirty per cent (30%) of the
entire water supply to which purchasers are entitled every

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thirty (30) days. The grades and cross-sections of canals
will be varied to suit conditions with a view to having the
necessary carrying capacity for the delivery of water under
a rotation system.

It is expressly understood and agreed that whenever
State Desert Land List No. 52, hereinabove referred to, or
any part thereof, is approved for segregation and set apart
by agreement between the State of Idaho and the United
States, the provisions of this contract shall apply to such
lands in the same manner precisely as if said lands were
included in ''Schedule B" attached hereto.

3.
RIGHT OF WAY.

The said party of the first part grants to the said party
of the second part a right of way across all lands belonging
to the State of Idaho or that may be ceded to the State of
Idaho by virtue of the Act of Congress commonly known as
the Carey Act for the construction and operation of said
reservoir and irrigation system, which right of way shall
be equal to the actual width of the canal, lateral or waste
ditch at its base, from toe to toe of the embankment, to-
gether with a strip of land along one side of such canal,
lateral or waste ditch, and adjacent thereto, not to exceed
fifty (50) feet in width along the main canal, thirty (30
feet in width along the laterals leading from said main
canal, and a proportionate width along the smaller laterals
and waste ditches ; said right of way to be located as desig-
nated by the Chief Engineer of the party of the second part,
and approved by the State Engineer, and in all cases to be
sufficient for ingress, egress and passage along said canal,
lateral or waste ditch, as the necessity therefor exists, and
all water users on lands irrigated from said reservoir and
irrigation system shall have such right of way as may be
necessary from the second party's canal or laterals to their
own land in order to construct and maintain the necessary
service ditches for their own use, and such right of way
across said lands as may be necessary for waste ditches.
No reservoirs, however, shall be constructed under this pro-
vision of this contract upon any portion of sections sixteen
(16) or thirty-six (36), or other lands belonging to the
State of Idaho, without making compensation and comply-
ing with the laws of the State governing that subject, but
rights of way over such State lands shall be granted on the
most favorable terms that the laws of Idaho will permit.
No more laterals, service or waste ditches shall be construct-
ed across any premises than are necessary, in the opinion
of the second party and the State Engineer, to properly irri-

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gate the land so intended to be irrigated from such ditches
and to carry away the waste water therefrom.

The laterals, service and waste ditches shall be constructed
under the direction of the second party and subject to the
approval of the State Engineer. In case any land owner
is dissatisfied with the location of any service ditch across
his premises, he shall have the right to appeal to the State
Engineer, from whose decision either party may appeal to
the State Board of Land Commissioners. No compensation
shall be paid to the land owner for any of the rights of way
herein provided for. Detail maps showing the location of
such laterals and waste ditches as are required to be con-
structed by the second party hereunder shall be filed with
the Board and with the State Engineer, but such filing need
not be made prior to the lands being thrown open for settle-
ment.

4.
APPROPRIATION OF WATER.

The party of the second part agrees to convey all its water
rights in and to Big Lost River or its tributaries now owned
or appropriated by it, together with such other water rights
as it may acquire or appropriate in connection with this
project to the Gem State Water Company, hereinafter more
particularly mentioned, to the end that there may be fur-
nished and delivered to the said irrigation system and to the
owners of shares therein, as specified in other provisions of
this contract, all of the said appropriated water to which the
second party may be entitled to the extent of two acre feet
of water per acre or a pro rata part thereof for the lands
of said shareholders during the irrigation season, to be de-
livered under a system of rotation, as hereinafter provided ;
said water is to be measured at a point not farther distant
than one-half mile from each quarter section of the lands to
be irrigated from the system. In case the measuring device
cannot be conveniently placed at the point above mentioned,
then it shall be so placed as the needs of the irrigation sys-
tem require.

5.

When it shall appear to the State Land Board that actual
construction of the "First Unit" of said irrigation works has
been so far completed that water to the extent of two acre
feet per acre is available for the irrigation of that portion
of those lands described in "Schedule C" hereto attached,
which are situate within the so-called Era Flat and Arco
Tracts, hereinafter more particularly described, then the
said Board, upon being requested so to do by the second



party, shall cause to be opened to settlement by advertise-
ment as provided by law such portions as said second party
shall deem advisable, of said Era Flat and Arco Tracts as
are described in "Schedule B" hereto attached and which
have not already been opened to settlement; and similarly
when it shall appear to the State Land Board that actual
construction of the "Second Unit" of said irrigation works
has been so far completed that water to the extent of two
acre feet per acre is available for the irrigation of the re-
maining lands described in "Schedule C" (other than those
situate within the said Era Flat and Arco Tracts), then the
said Board upon being requested so to do by the second
party, shall cause to be opened to settlement by advertise-
ment, as provided by law, such other portions of the lands
described in "Schedule B" as the second party shall deem
advisable and shall not already have been opened to settle-
ment. In every case the opening of said lands to settlement
and the disposition thereof to be under such regulations as
shall be prescribed by said Board.

6.
APPLICATION FOR LANDS.

The said party of the first part, through its State Board of
Land Commissioners, agrees that it will not approve any ap-
plication for filing on the lands referred to in "Schedule B"
hereto attached until the person or persons so applying shall
furnish to the said Board a true copy of the contract entered
into with the party of the second part for sufficient shares
or water rights in said reservoir and irrigation system to
entitle said person or persons to the right to use two acre
feet of water per acre, or a pro rata part thereof, for the
irrigation of said lands, said shares or water rights to be
evidenced by the stock of the Gem State Water Company,
as hereinafter provided.

The second party stipulates and agrees that to the extent
of the capacity of the irrigation works and to the extent of
the available supply of water from said system, it will, as
rapidly as lands are opened for entry and settlement, sell
or contract to sell water rights or shares to qualified entry-
men or purchasers applying therefor without preference or
partiality, other than that based upon priority of applica-
tion ; it being understood, however, that priority of applica-
tion or priority of entry or settlement or use of water shall
not give any priority of right to the use of water flowing
through the canal as against subsequent purchasers, but
shall entitle the purchaser to a proportionate interest only
therein, the water rights having been taken for the benefit
of the entire tract of land to be irrigated from the system.



7.
SALE OF LANDS BY STATE.

The party of the first part, acting through its State Board
of Land Commissioners, agrees to sell such of the lands de-
scribed in "Schedule B" hereto attached as are or may be-
come salable to such persons as are or may be by law en-
titled to file upon the same for the sum of fifty cents (50c)
per acre, half of which sum shall be paid at the time of
application for the entry of such lands made to said Board
and the remaining one-half at the time of making final proof
thereon.

8.
PRICE OF WATER RIGHTS.

Said party of the second part further agrees and under-
takes that so long as there is sufficient water for that pur-
pose, it will sell, or cause to be sold, to the person or persons
applying therefor who have filed or who may hereafter file
upon any of the lands herein described, or to the owners of
any other lands not described herein, but which are or may
be susceptible of irrigation from said irrigation system, by
good and sufficient contract of sale, a water right or share
in said canal for each and every acre under the system filed
upon or purchased from the State or acquired from the
United States. Each of said shares or water rights shall
represent a proportionate interest in said water rights and
irrigation system, together with the rights and franchises
attached thereto, subject only to the reservation and here-
inafter set out. Water rights or shares shall be sold to the
person or persons aforesaid for the lands herein described
or for other lands which are susceptible of irrigation from
said system, as follows :

To the person or persons filing upon or who have filed
upon said lands at a price not to exceed forty dollars
($40.00) per share, to be paid as follows:

One-tenth (1/10) in cash at the date of sale, and the re-
mainder in fourteen equal annual installments, bearing in-
terest at the rate of six per cent (6%) per annum, payable
annually, on November 1st of each year.

To the person or persons purchasing any portion or por-
tions of sections sixteen (16) or thirty-six (36), or any
other lands belonging to the State of Idaho and within the
exterior limits of said segregations and which are suscep-
tible of irrigation and reclamation from said irrigation
system, and so long as there is sufficient water for that
purpose, water rights or shares shall be sold at a price not
to exceed thirty dollars ($30.00) per share; provided, said

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water rights or shares are purchased within one year after
the purchase of the lands from the State, and not exceeding
forty dollars ($40.00) per share at any time thereafter;
provided also, that no preference or priority, except as to
price, is intended to be given to purchasers of state lands.
Said payments for water rights upon said state lands to be
made as follows:

When the price is thirty dollars ($30.00) per share;

The payment at the time of sale shall be three dollars
($3.00) per share, and the remainder shall be paid in four-
teen equal annual installments, bearing interest at the rate
of six per cent per annum, payable annually, on November
1st of each year.

In case purchasers or entrymen on lands other than those
segregated under the Carey Act decline or fail to purchase
water rights for two years or more after the water is ready
for delivery, then $2.40 per share may be added to the price
of the water right for each year's delay or fraction thereof.

It is understood and agreed that the said party of the
second part shall charge interest at the rate of six per cent
per annum upon all deferred payments whenever said shares
are sold upon a time contract. Interest shall begin to run on
water contracts on May 1st following the date when water
is available for the irrigation of the lands covered by such
water contracts. This agreement shall not, however, be con-
strued to prevent the sale of shares or water rights to pur-
chasers upon terms more favorable to them than those here-
inbefore provided, or to prevent the payment of installments
of the purchase price in advance of the maturity of the
same at the option of the purchaser. But in no case shall
water rights or shares be sold beyond the carrying capacity
of said canal system.

9.

It is understood and agreed that any settler or the as-
signs of any settler who has heretofore purchased a water
right from the Big Lost River Irrigation Company for the
irrigation of any of the lands described in "Schedule C"
shall, upon the surrender to second party of the contract
evidencing such purchase, have a preferred right to enter
into a new contract with the party of the second part for
the purchase of a water right for the same lands at a price
not to exceed forty dollars ($40.00) per share, payable in
installments, with interest as hereinbefore provided, and
any cash or equivalent payments heretofore made by such
settler to the Big Lost River Land & Irrigation Company
upon the purchase of such water rights, for which said set-
tler can furnish satisfactory proof to said second party, may

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be applied upon the payments due upon his new contract
with the party of the second part as follows :

One-fifth of such payment shall be credited upon the first
installment and one-fifth of the balance credited on each
subsequent installment, until such purchaser shall have re-
ceived credit for the whole amount so paid by him to said
Big Lost River Irrigation Company ; provided that no credit
upon the first installment shall exceed $2.00 per acre, and
provided further, that no person claiming such preferred
right shall be entitled to the same unless he shall surrender
his old contract and enter into such new contract with the
party of the second part on or before May 1st, 1916; the
failure of any person to surrender said old contract and
enter into such new contract with said second party on or
before May 1st, 1916, or to make the initial payment thereon
within the time hereinafter limited, shall be construed as a
waiver on the part of such person to said preferred right
to purchase water from said second party, and the party of
the first part will thereupon cancel the contract of such
person for the purchase of the land designed to be irrigated
under the former contract of such person with the Big Lost
River Irrigation Company, and the second party hereto may
thereupon sell an equivalent amount of water to any other
person or persons as said second party may see fit. Pro-
vided, the State Land Board may extend the time within
which settlers on the Powell tract may avail themselves of
said preference right to a date not later than September 1st,
1916. The form of the contract to be entered into between


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Online LibraryUtah Construction CompanyContract between the Utah Construction Company and the State of Idaho → online text (page 1 of 3)