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regulations of the Commissioner, except as it is controlled by the acts of fraud or mistake. 

Had a true statement been made in such application in the first instance, showing the improvements claimed by the Company, no contract would have been made, appellant contends. The substance of the representations made my appellee in said application was that there were no improvements upon said land at the time of the application, when in truth and in fact appellant Company had, some years before, made extensive improvements on a small portion of the tract in question. 

Whether such improvements will be protected as against rights acquired by appellee under his contract of purchase is the important question in this case. Appllant believes itself to be protected under the provisions of Chap. 49, the Laws of 1907 which authorize right-of-way upon public lands for the development and transmission of water. Appellee contends that neither this act nor any regular and lawful appropriation of water through proceedings in the Territorial Engineer's office will avail it, and, in addition, urges other defences to the Company's claim. 

The application of appellant Company was to divert, store and use from January 1st to December 31st of each year, 0.804 acre feet of water from the Rio del Apache, or Indian creek, a tributary of the Rio Galisteo. The evidence shows that water is available in this stream for only a few months in the year, and that but little use has been made of the dam facilities and pipe line in the last few years, and but little, if any, improvement has been made in the works since their completion some 25 years ago, if such facts could make any difference. 

In 1936, and some six years after the contract for purchase had been entered into, appellant Company filed a contest before the State Land Commissioner calling his attention to the Company's improvements upon the land in question, pointing out what it considered to be false statements of fact in the appellee's application

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