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cancel therefor, because appellant was not a party to that proceeding.
The Commissioner, who acted upon the Dasburg application in 1930, was doubtless relying also, as he properly could, upon the provisions of Sec. 132-162 N. M. Stat. Ann. 1929 Comp., which requires payment for improvements at their appraised value, only to any lessee of state lands. There is no authority for requiring payment to any one except a lessee,appellee points out, and, therefore, since he was not required to pay for a trespasser's improvements, if under the circumstances of their condition of usability at the time in question it could be said that these were improvements, he was not obliged to take notice thereof in his application to purchase land, We agree with this contention.
Appellee points out that in no event is he benefited by the so-called "improvements". The land involved cannot be irrigated through appellant's facilities, he says, because the water diverted would not belong to the owner of the land. Appellant has acquired this water under its filing. He says these facilities represent for him no improvement to the area upon which they stand, and correctly suggests that appellant cannot be denied its right to divert and use the water, after it has secured a sufficient right-of-way by agreement with the land owner or by condemnation; but that it must get title in a regular and legal way, which ought to present no great difficulty.
It appears, therefore, that the only question properly before this court is whether the Commissioner was correct in modifying or amending appellee's contract through elimination therefrom of a portion of the lands upon which the improvements were located, and continuing the contract in force as to the remainder. The modification was over the protest of appellee, and, as we have pointed out, it was, under the circumstances, beyond the power of the Commissioner -- and it would have been likewise, beyond the
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