THE LAND SYSTEM NEEDED FOR THE ARID REGION.
The growth and prosperity of the Arid Region will depend largely upon a
land system which will comply with the requirements of the conditions
and facts briefly set forth in the former chapter.
Any citizen of the United States may acquire title to public lands by
purchase at public sale or by ordinary “private entry”, and in virtue
of preëmption, homestead, timber culture, and desert land laws.
Purchase at public sale may be effected when the lands are offered at
public auction to the highest bidder, either pursuant to proclamation
by the President or public notice given in accordance with instructions
from the General Land Office. If the land is thus offered and
purchasers are not found, they are then subject to “private entry” at
the rate of $1.25 or $2.50 per acre. For a number of years it has not
been the practice of the Government to dispose of the public lands by
these methods; but the public lands of the southern states are now, or
soon will be, thus offered for sale.
Any citizen may preëmpt 160 acres of land, and by settling thereon,
erecting a dwelling, and making other improvements, and by paying $1.25
per acre in some districts, without the boundaries of railroad grants,
and $2.50 within the boundaries of railroad grants in others, may
acquire title thereto. The preëmption right can be exercised but once.
No person can exercise the preëmption right who is already the owner of
320 acres of land.
Any citizen may, under the homestead privilege, obtain title to 160
acres of land valued at $1.25 per acre, or 80 acres valued at the rate
of $2.50, by payment of $5 in the first case and $10 in the last,
and by residing on the land for the term of five years and by making
certain improvements.
The time of residence is shortened for persons who have served in the
army or navy of the United States, and any such person may homestead
160 acres of land valued at $2.50 per acre.
Any citizen may take advantage of both the homestead and preëmption
privileges.
Under the timber culture act, any citizen who is the head of a family
may acquire title to 160 acres of land in the prairie region by
cultivating timber thereon in certain specific quantities; the title
can be acquired at the expiration of eight years from the date of entry.
Any citizen may acquire title to one section of desert land (irrigable
lands as described in this paper) by the payment at the time of entry
of 25 cents per acre, and by redeeming the same by irrigation within
a period of three years and by the payment of $1 per acre at the
expiration of that time, and a patent will then issue.
Provision is also made for the disposal of public lands as town sites.
From time to time land warrants have been issued by the Government as
bounties to soldiers and sailors, and for other purposes. These land
warrants have found their way into the market, and the owners thereof
are entitled to enter Government lands in the quantities specified in
the warrants.
Agricultural scrip has been issued for the purpose of establishing
and endowing agricultural schools. A part of this scrip has been used
by the schools in locating lands for investment. Much of the scrip
has found its way into the market and is used by private individuals.
Warrants and scrip can be used when lands have been offered for sale,
and preëmptors can use them in lieu of money.
Grants of lands have been made to railroad and other companies, and as
these railroads have been completed in whole or in part, the companies
have obtained titles to the whole or proportional parts of the lands
thus granted.
Where the railroads are unfinished the titles are inchoate to an extent
proportional to the incomplete parts.
With small exceptions, the lands of the Arid Region have not been
offered for sale at auction or by private entry.
The methods, then, by which the lands under consideration can be
obtained from the Government are by taking advantage of the preëmption,
homestead, timber culture, or desert land privileges.
IRRIGABLE LANDS.
By these methods adequate provision is made for actual settlers on all
irrigable lands that are dependent on the waters of minor streams; but
these methods are insufficient for the settlement of the irrigable
lands that depend on the larger streams, and also for the pasturage
lands and timber lands, and in this are included nearly all the lands
of the Arid Region. If the irrigable lands are to be sold, it should
be in quantities to suit purchasers, and but one condition should be
imposed, namely, that the lands should be actually irrigated before
the title is transferred to the purchaser. This method would provide
for the redemption of these lands by irrigation through the employment
of capital. If these lands are to be reserved for actual settlers,
in small quantities, to provide homes for poor men, on the principle
involved in the homestead laws, a general law should be enacted under
which a number of persons would be able to organize and settle on
irrigable districts, and establish their own rules and regulations for
the use of the water and subdivision of the lands, but in obedience to
the general provisions of the law.
TIMBER LANDS.
The timber lands cannot be acquired by any of the methods provided in
the preëmption, homestead, timber culture, and desert land laws, from
the fact that they are not agricultural lands. Climatic conditions
make these methods inoperative. Under these laws “dummy entries” are
sometimes made. A man wishing to obtain the timber from a tract of land
will make homestead or preëmption entries by himself or through his
employés without intending to complete the titles, being able thus to
hold these lands for a time sufficient to strip them of their timber.
This is thought to be excusable by the people of the country, as
timber is necessary for their industries, and the timber lands cannot
honestly be acquired by those who wish to engage in timber enterprises.
Provision should be made by which the timber can be purchased by
persons or companies desiring to engage in the lumber or wood
business, and in such quantities as may be necessary to encourage the
construction of mills, the erection of flumes, the making of roads, and
other improvements necessary to the utilization of the timber for the
industries of the country.
PASTURAGE LANDS.
If divisional surveys were extended over the pasturage lands, favorable
sites at springs and along small streams would be rapidly taken under
the homestead and preëmption privileges for the nuclei of pasturage
farms.
Unentered lands contiguous to such pasturage farms could be controlled
to a greater or less extent by those holding the water, and in this
manner the pasturage of the country would be rendered practicable.
But the great body of land would remain in the possession of the
Government; the farmers owning the favorable spots could not obtain
possession of the adjacent lands by homestead or preëmption methods,
and if such adjacent lands were offered for sale, they could not afford
to pay the Government price.
Certain important facts relating to the pasturage farms may be
advantageously restated.
The farm unit should not be less than 2,560 acres; the pasturage farms
need small bodies of irrigable land; the division of these lands should
be controlled by topographic features to give water fronts; residences
of the pasturage lands should be grouped; the pasturage farms cannot be
fenced--they must be occupied in common.
The homestead and preëmption methods are inadequate to meet these
conditions. A general law should be enacted to provide for the
organization of pasturage districts, in which the residents should have
the right to make their own regulations for the division of the lands,
the use of the water for irrigation and for watering the stock, and for
the pasturage of the lands in common or in severalty. But each division
or pasturage farm of the district should be owned by an individual;
that is, these lands could be settled and improved by the “colony” plan
better than by any other. It should not be understood that the colony
system applies only to such persons as migrate from the east in a body;
any number of persons already in this region could thus organize. In
fact very large bodies of these lands would be taken by people who are
already in the country and who have herds with which they roam about
seeking water and grass, and making no permanent residences and no
valuable improvements. Such a plan would give immediate relief to all
these people.
This district or colony system is not untried in this country. It is
essentially the basis of all the mining district organizations of the
west. Under it the local rules and regulations for the division of
mining lands, the use of water, timber, etc., are managed better than
they could possibly be under specific statutes of the United States.
The association of a number of people prevents single individuals from
having undue control of natural privileges, and secures an equitable
division of mineral lands; and all this is secured in obedience to
statutes of the United States providing general regulations.
Customs are forming and regulations are being made by common consent
among the people in some districts already; but these provide no means
for the acquirement of titles to land, no incentive is given to the
improvement of the country, and no legal security to pasturage rights.
If, then, the irrigable lands can be taken in quantities to suit
purchasers, and the colony system provided for poor men who wish to
coöperate in this industry; if the timber lands are opened to timber
enterprises, and the pasturage lands offered to settlement under a
colony plan like that indicated above, a land system would be provided
for the Arid Region adapted to the wants of all persons desiring to
become actual settlers therein. Thousands of men who now own herds
and live a semi-nomadic life; thousands of persons who now roam from
mountain range to mountain range prospecting for gold, silver, and
other minerals; thousands of men who repair to that country and return
disappointed from the fact that they are practically debarred from the
public lands; and thousands of persons in the eastern states without
employment, or discontented with the rewards of labor, would speedily
find homes in the great Rocky Mountain Region.
In making these recommendations, the wisdom and beneficence of the
homestead system have been recognized and the principles involved have
been considered paramount.
To give more definite form to some of the recommendations for
legislation made above, two bills have been drawn, one relating to the
organization of irrigation districts, the other to pasturage districts.
These bills are presented here. It is not supposed that these forms are
the best that could be adopted; perhaps they could be greatly improved;
but they have been carefully considered, and it is believed they embody
the recommendations made above.
A BILL to authorize the organization of irrigation districts by
homestead settlements upon the public lands requiring irrigation for
agricultural purposes.
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That it shall be lawful for
any nine or more persons who may be entitled to acquire a homestead
from the public lands, as provided for in sections twenty-two hundred
and eighty-nine to twenty-three hundred and seventeen, inclusive, of
the Revised Statutes of the United States, to settle an irrigation
district and to acquire titles to irrigable lands under the limitations
and conditions hereinafter provided.
SEC. 2. That it shall be lawful for the persons mentioned in section
one of this act to organize an irrigation district in accordance with
a form and general regulations to be prescribed by the Commissioner of
the General Land Office, which shall provide for a recorder; and said
persons may make such by-laws, not in conflict with said regulations,
as they may deem wise for the use of waters in such district for
irrigation or other purposes, and for the division of the lands into
such parcels as they may deem most convenient for irrigating purposes;
but the same must accord with the provisions of this act.
SEC. 3. That all lands in those portions of the United States where
irrigation is necessary to agriculture, which can be redeemed by
irrigation and for which there is accessible water for such purpose,
not otherwise utilized or lawfully claimed, sufficient for the
irrigation of three hundred and twenty acres of land, shall, for the
purposes set forth in this act, be classed as irrigable lands.
SEC. 4. That it shall be lawful for the requisite number of persons,
as designated in section one of this act, to select from the public
lands designated as irrigable lands in section three of this act,
for the purpose of settling thereon, an amount of land not exceeding
eighty acres to each person; but the lands thus selected by the persons
desiring to organize an irrigation district shall be in one continuous
tract, and the same shall be subdivided as the regulations and by-laws
of the irrigation district shall prescribe: _Provided_, That no one
person shall be entitled to more than eighty acres.
SEC. 5. That whenever such irrigation district shall be organized the
recorder of such district shall notify the register and receiver of
the land district in which such irrigation district is situate, and
also the Surveyor-General of the United States, that such irrigation
district has been organized; and each member of the organization of
said district shall file a declaration with the register and receiver
of said land district that he has settled upon a tract of land within
such irrigation district, not exceeding the prescribed amount, with the
intention of residing thereon and obtaining a title thereto under the
provisions of this act.
SEC. 6. That if within three years after the organization of the
irrigation district the claimants therein, in their organized capacity,
shall apply for a survey of said district to the Surveyor-General of
the United States, he shall cause a proper survey to be made, together
with a plat of the same; and on this plat each tract or parcel of
land into which the district is divided, such tract or parcel being
the entire claim of one person, shall be numbered, and the measure of
every angle, the length of every line in the boundaries thereof, and
the number of acres in each tract or parcel shall be inscribed thereon,
and the name of the district shall appear on the plat in full; and
this plat and the field-notes of such survey shall be submitted to the
Surveyor-General of the United States; and it shall be the duty of that
officer to examine the plat and notes therewith and prove the accuracy
of the survey in such manner as the Commissioner of the General Land
Office may prescribe; and if it shall appear after such examination
and proving that correct surveys have been made, and that the several
tracts claimed are within the provisions of this act, he shall certify
the same to the register of the land district, and shall thereupon
furnish to the said register of the land district, and to the recorder
of the irrigation district, and to the recorder or clerk of the county
in which the irrigation district is situate, and to the Commissioner
of the General Land Office, a copy thereof to each, and the original
shall be retained in the office of the Surveyor-General of the United
States for preservation.
SEC. 7. That each person applying for the benefits of this act shall,
in addition to compliance therewith, conform to the methods provided
for the acquirement of a homestead in sections twenty-two hundred and
eighty-nine to twenty-three hundred and seventeen, inclusive, of the
Revised Statutes of the United States, so far as they are applicable
and consistent with this act, and shall also furnish such evidence as
the Commissioner of the General Land Office may require that such land
has actually been redeemed by irrigation, and may thereupon obtain a
patent: _Provided_, That no person shall obtain a patent under this act
to any coal lands, town sites, or tracts of public lands on which towns
may have been built, or to any mine of gold, silver, cinnabar, copper,
or other mineral for the sale or disposal of which provision has been
made by law.
SEC. 8. That the lands patented under the provisions of this act shall
be described as irrigation farms, and designated by the number of the
tract or parcel and the name of the irrigation district.
SEC. 9. That the right to the water necessary to the redemption
of an irrigation farm shall inhere in the land from the time of
the organization of the irrigation district, and in all subsequent
conveyances the right to the water shall pass with the title to the
land. But if after the lapse of five years from the date of the
organization of the district the owner of any irrigation farm shall
have failed to irrigate the whole or any part of the same, the right to
the use of the necessary water to irrigate the unreclaimed lands shall
thereupon lapse, and any subsequent right to water necessary for the
cultivation of said unreclaimed land shall be acquired only by priority
of utilization.
SEC. 10. That it shall be lawful for any person entitled to acquire
a homestead from the public lands as designated in section one of
this act to settle on an irrigation farm contiguous to any irrigation
district after such district has been organized by making the
notifications and declaration provided for in section five of this act,
and by notifying the recorder of such irrigation district, and also by
complying with the rules and regulations of such district; and such
person may thereupon become a member of the district and entitled to
the same privileges as the other members thereof; and it shall be the
duty of the recorder of the irrigation district to notify the register
and receiver of the land district, and also the Surveyor-General of
the United States, that such claim has been made; and such person may
obtain a patent to the same under the conditions and by conforming
to the methods prescribed in this act: _Provided_, That the water
necessary for the irrigation of such farm can be taken without injury
to the rights of any person who shall have entered an irrigation farm
in such district: _And provided further_, That the right to the water
necessary to the redemption of such irrigation farm shall inhere in the
land from the time when said person becomes a member of said district,
and in all subsequent conveyances the right to the water shall pass
with the title to the land; but if, after the lapse of five years from
the date of said notifications and declaration, the owner of said
irrigation farm shall have failed to irrigate the whole or any part of
the same, the right to the use of the necessary water to irrigate the
unreclaimed lands shall thereupon lapse, and any subsequent right to
the water necessary for the cultivation of the said unreclaimed land
shall be acquired only by priority of utilization.
A BILL to authorize the organization of pasturage districts by
homestead settlements on the public lands which are of value for
pasturage purposes only.
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That it shall be lawful for
any nine or more persons who may be entitled to acquire a homestead
from the public lands, as provided for in section twenty-two hundred
and eighty-nine to twenty-three hundred and seventeen, inclusive,
of the Revised Statutes of the United States, to settle a pasturage
district and to acquire titles to pasturage lands under the limitations
and conditions hereinafter provided.
SEC. 2. That it shall be lawful for the persons mentioned in section
one of this act to organize a pasturage district in accordance with a
form and general regulations to be prescribed by the Commissioner of
the General Land Office, which shall provide for a recorder; and said
persons may make such by-laws, not in conflict with said regulations,
as they may deem wise for the use of waters in such district for
irrigation or other purposes, and for the pasturage of the lands
severally or conjointly; but the same must accord with the provisions
of this act.
SEC. 3. That all lands in those portions of the United States where
irrigation is necessary to agriculture shall be, for the purposes set
forth in this act, classed as pasturage lands, excepting all tracts
of land of not less than three hundred and twenty acres which can be
redeemed by irrigation, and where there is sufficient accessible water
for such purpose not otherwise utilized or lawfully claimed, and all
lands bearing timber of commercial value.
SEC. 4. That it shall be lawful for the requisite number of persons,
as designated in section one of this act, to select from the public
lands designated as pasturage lands in section three of this act, for
the purpose of settling thereon, an amount of land not exceeding two
thousand five hundred and sixty acres to each person; but the lands
thus selected by the persons desiring to organize a pasturage district
shall be in one continuous tract, and the same shall be subdivided
as the regulations and by-laws of the pasturage district shall
prescribe: _Provided_, That no one person shall be entitled to more
than two thousand five hundred and sixty acres, and this may be in one
continuous body, or it may be in two parcels, one for irrigation, the
other for pasturage purposes; but the parcel for irrigation shall not
exceed twenty acres: _And provided further_, That no tract or tracts
of land selected for any one person shall be entitled to a greater
amount of water for irrigating purposes than that sufficient for the
reclamation and cultivation of twenty acres of land; nor shall the
tract be selected in such a manner along a stream as to monopolize a
greater amount.
SEC. 6. That whenever such pasturage district shall be organized, the
recorder of such district shall notify the register and receiver of the
land district in which such pasturage district is situate, and also the
Surveyor-General of the United States, that such pasturage district has
been organized; and each member of the organization of said district
shall file a declaration with the register and receiver of said land
district that he has settled upon a tract of land within such pasturage
district, not exceeding the prescribed amount, with the intention of
residing thereon and obtaining a title thereto under the provisions of
this act.
SEC. 6. That if within three years after the organization of the
pasturage district the claimants therein, in their organized capacity,
shall apply for a survey of said district to the Surveyor-General of
the United States, he shall cause a proper survey to be made, together
with a plat of the same; and on this plat each tract or parcel of land
into which the district is divided shall be numbered, and the measure
of every angle, the length of every line in the boundaries thereof,
and the number of acres in each tract or parcel, shall be inscribed
thereon, and the name of the district shall appear on the plat in full;
and this plat and the field-notes of such survey shall be submitted to
the Surveyor-General of the United States; and it shall be the duty
of that officer to examine the plat and notes therewith and prove
the accuracy of the survey in such manner as the Commissioner of the
General Land Office may prescribe; and if it shall appear after such
examination and proving that correct surveys have been made, and that
the several tracts claimed are within the provisions of this act, he
shall certify the same to the register of the land district, and shall
furnish to the said register of the land district, and to the recorder
of the pasturage district, and to the recorder or clerk of the county
in which the pasturage district is situate, and to the Commissioner of
the General Land Office, a copy thereof to each; and the original shall
be retained in the office of the Surveyor-General of the United States
for preservation.
SEC. 7. That each person applying for the benefits of this act shall,
in addition to compliance therewith, conform to the methods provided
for the acquirement of a homestead in sections twenty-two hundred and
eighty-nine to twenty-three hundred and seventeen, inclusive, of the
Revised Statutes of the United States, so far as they are applicable
and consistent with this act, and may thereupon obtain a patent:
_Provided_, That no person shall obtain a patent under this act to any
coal lands, town sites, or tracts of public lands on which towns may
have been built, or to any mine of gold, silver, cinnabar, copper, or
other mineral for the sale or disposal of which provision has been made
by law.
SEC. 8. That the lands patented under the provisions of this act shall
be described as pasturage farms, and designated by the number of the
tract or parcel and the name of the pasturage district.
SEC. 9. That the right to the water necessary to the redemption of an
irrigation tract of a pasturage farm shall inhere in the land from
the time of the organization of the pasturage district, and in all
subsequent conveyances the right to the water shall pass with the title
to the tract; but if after a lapse of five years from the date of the
organization of the pasturage district the owner of any pasturage farm
shall have failed to irrigate the whole or any part of the irrigable
tract the right to the use of the necessary water to irrigate the
unreclaimed land shall thereupon lapse, and any subsequent right to
water necessary for the cultivation of such unreclaimed land shall be
acquired only by priority of utilization.
SEC. 10. That it shall be lawful for any person entitled to acquire a
homestead from the public lands designated in section one of this act
to settle on a pasturage farm contiguous to any pasturage district
after such district has been organized, by making the notifications and
declaration provided for in section five of this act, and by notifying
the recorder of such pasturage district, and also by complying with the
rules and regulations of such district; and such person may thereupon
become a member of the district and entitled to the same privileges as
the other members thereof; and it shall be the duty of the recorder
of the pasturage district to notify the register and receiver of the
land district, and also the Surveyor-General of the United States, that
such claim has been made; and such person may obtain a patent to the
same under the conditions and by conforming to the methods prescribed
in this act: _Provided_, That the water necessary for such farm can be
taken without injury to the rights of any person who shall have entered
a pasturage farm in such district: _And provided further_, That the
right to the water necessary to the redemption of the irrigable tract
of such pasturage farm shall inhere in the land from the time when
said person becomes a member of said district, and in all subsequent
conveyances the right to the water shall pass with the title to the
land; but if, after the lapse of five years from the date of such
notifications and declaration, the owner of said irrigable tract shall
have failed to irrigate the whole or any part of the same, the right to
the use of the necessary water to irrigate the unreclaimed land shall
thereupon lapse, and any subsequent right to the water necessary to
the cultivation of the said unreclaimed land shall be acquired only by
priority of utilization.
* * * * *
The provisions in the submitted bills by which the settlers themselves
may parcel their lands may need further comment and elucidation. If
the whole of the Arid Region was yet unsettled, it might be wise for
the Government to undertake the parceling of the lands and employ
skilled engineers to do the work, whose duties could then be performed
in advance of settlement. It is manifest that this work cannot be
properly performed under the contract system; it would be necessary to
employ persons of skill and judgment under a salary system. The mining
industries which have sprung up in the country since the discovery of
gold on the Pacific coast, in 1849, have stimulated immigration, so
that settlements are scattered throughout the Arid Region; mining towns
have sprung up on the flanks of almost every great range of mountains,
and adjacent valleys have been occupied by persons desiring to engage
in agriculture. Many of the lands surveyed along the minor streams have
been entered, and the titles to these lands are in the hands of actual
settlers. Many pasturage farms, or ranches, as they are called locally,
have been established throughout the country. These remarks are true
of every state and territory in the Arid Region. In the main these
ranches or pasturage farms are on Government land, and the settlers are
squatters, and some are not expecting to make permanent homes. Many
other persons have engaged in pasturage enterprises without having
made fixed residences, but move about from place to place with their
herds. It is now too late for the Government to parcel the pasturage
lands in advance of the wants of settlers in the most available way,
so as to closely group residences and give water privileges to the
several farms. Many of the settlers are actually on the ground, and are
clamoring for some means by which they can obtain titles to pasturage
farms of an extent adequate to their wants, and the tens of thousands
of individual interests would make the problem a difficult one for
the officers of the Government to solve. A system less arbitrary
than that of the rectangular surveys now in vogue, and requiring
unbiased judgment, overlooking the interests of single individuals
and considering only the interests of the greatest number, would meet
with local opposition. The surveyors themselves would be placed under
many temptations, and would be accused--sometimes rightfully perhaps,
sometimes unjustly--of favoritism and corruption, and the service would
be subject to the false charges of disappointed men on the one hand,
and to truthful charges against corrupt men on the other. In many ways
it would be surrounded with difficulties and fall into disrepute.
Under these circumstances it is believed that it is best to permit the
people to divide their lands for themselves--not in a way by which each
man may take what he pleases for himself, but by providing methods by
which these settlers may organize and mutually protect each other from
the rapacity of individuals. The lands, as lands, are of but slight
value, as they cannot be used for ordinary agricultural purposes, _i.
e._, the cultivation of crops; but their value consists in the scant
grasses which they spontaneously produce, and these values can be made
available only by the use of the waters necessary for the subsistence
of stock, and that necessary for the small amount of irrigable land
which should be attached to the several pasturage farms. Thus,
practically, all values inhere in the water, and an equitable division
of the waters can be made only by a wise system of parceling the lands;
and the people in organized bodies can well be trussed with this right,
while individuals could not thus be trusted. These considerations have
led to the plan suggested in the bill submitted for the organization of
pasturage districts.
In like manner, in the bill designed for the purpose of suggesting a
plan for the organization of irrigation districts, the same principle
is involved, _viz_, that of permitting the settlers themselves to
subdivide the lands into such tracts as they may desire.
The lands along the streams are not valuable for agricultural purposes
in continuous bodies or squares, but only in irrigable tracts governed
by the levels of the meandering canals which carry the water for
irrigation, and it would be greatly to the advantage of every such
district if the lands could be divided into parcels, governed solely by
the conditions under which the water could be distributed over them;
and such parceling cannot be properly done prior to the occupancy
of the lands, but can only be made pari passu with the adoption of a
system of canals; and the people settling on these lands should be
allowed the privilege of dividing the lands into such tracts as may be
most available for such purposes, and they should not be hampered with
the present arbitrary system of dividing the lands into rectangular
tracts.
Those who are acquainted with the history of the land system of the
eastern states, and know the difficulty of properly identifying or
determining the boundaries of many of the parcels or tracts of land
into which the country is divided, and who appreciate the cumbrous
method of describing such lands by metes and bounds in conveyances, may
at first thought object to the plan of parceling lands into irregular
tracts. They may fear that if the system of parceling the lands into
townships and sections, and describing the same in conveyances by
reference to certain great initial points in the surveys of the lands,
is abandoned, it will lead to the uncertainties and difficulties that
belonged to the old system. But the evils of that system did not belong
to the shape into which the lands were divided. The lands were often
not definitely and accurately parceled; actual boundary lines were
not fixed on the ground and accurate plats were not made, and the
description of the boundary lines was usually vague and uncertain.
It matters not what the shape of tracts or parcels may be; if these
parcels are accurately defined by surveys on the ground and plotted for
record, none of these uncertainties will arise, and if these tracts or
parcels are lettered or numbered on the plats, they may be very easily
described in conveyances without entering into a long and tedious
description of metes and bounds.
In most of our western towns and cities lots are accurately surveyed
and plotted and described by number of lot, number of block, etc.,
etc., and such a simple method should be used in conveying the
pasturage lands. While the system of parceling and conveying by
section, township, range, etc., was a very great improvement on the
system which previously existed, the much more simple method used in
most of our cities and towns would be a still further improvement.
The title to no tract of land should be conveyed from the Government
to the individual until the proper survey of the same is made and the
plat prepared for record. With this precaution, which the Government
already invariably takes in disposing of its lands, no fear of
uncertainty of identification need be entertained.
WATER RIGHTS.
In each of the suggested bills there is a clause providing that, with
certain restrictions, the right to the water necessary to irrigate
any tract of land shall inhere in the land itself from the date of
the organization of the district. The object of this is to give
settlers on pasturage or irrigation farms the assurance that their
lands shall not be made worthless by taking away the water to other
lands by persons settling subsequently in adjacent portions of the
country. The men of small means who under the theory of the bill are to
receive its benefits will need a few years in which to construct the
necessary waterways and bring their lands under cultivation. On the
other hand, they should not be permitted to acquire rights to water
without using the same. The construction of the waterways necessary to
actual irrigation by the land owners may be considered as a sufficient
guarantee that the waters will subsequently be used.
The general subject of water rights is one of great importance. In many
places in the Arid Region irrigation companies are organized who obtain
vested rights in the waters they control, and consequently the rights
to such waters do not inhere in any particular tracts of land.
When the area to which it is possible to take the water of any given
stream is much greater than the stream is competent to serve, if the
land titles and water rights are severed, the owner of any tract of
land is at the mercy of the owner of the water right. In general, the
lands greatly exceed the capacities of the streams. Thus the lands
have no value without water. If the water rights fall into the hands
of irrigating companies and the lands into the hands of individual
farmers, the farmers then will be dependent upon the stock companies,
and eventually the monopoly of water rights will be an intolerable
burden to the people.
The magnitude of the interests involved must not be overlooked. All the
present and future agriculture of more than four-tenths of the area
of the United States is dependent upon irrigation, and practically
all values for agricultural industries inhere, not in the lands but
in the water. Monopoly of land need not be feared. The question for
legislators to solve is to devise some practical means by which water
rights may be distributed among individual farmers and water monopolies
prevented.
The pioneers in the “new countries” in the United States have
invariably been characterized by enterprise and industry and an
intense desire for the speedy development of their new homes. These
characteristics are no whit less prominent in the Rocky Mountain Region
than in the earlier “new countries”; but they are even more apparent.
The hardy pioneers engage in a multiplicity of industrial enterprises
surprising to the people of long established habits and institutions.
Under the impetus of this spirit irrigation companies are organized and
capital invested in irrigating canals, and but little heed is given
to philosophic considerations of political economy or to the ultimate
condition of affairs in which their present enterprises will result.
The pioneer is fully engaged in the present with its hopes of immediate
remuneration for labor. The present development of the country fully
occupies him. For this reason every effort put forth to increase the
area of the agricultural land by irrigation is welcomed. Every man who
turns his attention to this department of industry is considered a
public benefactor. But if in the eagerness for present development a
land and water system shall grow up in which the practical control of
agriculture shall fall into the hands of water companies, evils will
result therefrom that generations may not be able to correct, and the
very men who are now lauded as benefactors to the country will, in the
ungovernable reaction which is sure to come, be denounced as oppressors
of the people.
_The right to use water should inhere in the land to be irrigated, and
water rights should go with land titles._
Those unacquainted with the industrial institutions of the far west,
involving the use of lands and waters, may without careful thought
suppose that the long recognized principles of the common law are
sufficient to prevent the severance of land and water rights; but
other practices are obtaining which have, or eventually will have,
all the force of common law, because the necessities of the country
require the change, and these practices are obtaining the color of
right from state and territorial legislation, and to some extent by
national legislation. In all that country the natural channels of the
streams cannot be made to govern water rights without great injury
to its agricultural and mining industries. For the great purposes of
irrigation and hydraulic mining the water has no value in its natural
channel. In general the water cannot be used for irrigation on the
lands immediately contiguous to the streams--_i. e._, the flood plains
or bottom valleys--for reasons more fully explained in a subsequent
chapter. The waters must be taken to a greater or less extent on the
bench lands to be used in irrigation. All the waters of all the arid
lands will eventually be taken from their natural channels, and they
can be utilized only to the extent to which they are thus removed, and
water rights must of necessity be severed from the natural channels.
There is another important factor to be considered. The water when used
in irrigation is absorbed by the soil and reëvaporated to the heavens.
It cannot be taken from its natural channel, used, and returned. Again,
the water cannot in general be properly utilized in irrigation by
requiring it to be taken from its natural channel within the limits
ordinarily included in a single ownership. In order to conduct the
water on the higher bench lands where it is to be used in irrigation,
it is necessary to go up the stream until a level is reached from which
the waters will flow to the lands to be redeemed. The exceptions to
this are so small that the statement scarcely needs qualification.
Thus, to use the water it must be diverted from its natural course
often miles or scores of miles from where it is to be used.
The ancient principles of common law applying to the use of natural
streams, so wise and equitable in a humid region, would, if applied to
the Arid Region, practically prohibit the growth of its most important
industries. Thus it is that a custom is springing up in the Arid
Region which may or may not have color of authority in statutory or
common law; on this I do not wish to express an opinion; but certain
it is that water rights are practically being severed from the natural
channels of the streams; and this must be done. In the change, it is
to be feared that water rights will in many cases be separated from
all land rights as the system is now forming. If this fear is not
groundless, to the extent that such a separation is secured, water
will become a property independent of the land, and this property will
be gradually absorbed by a few. Monopolies of water will be secured,
and the whole agriculture of the country will be tributary thereto--a
condition of affairs which an American citizen having in view the
interests of the largest number of people cannot contemplate with favor.
Practically, in that country the right to water is acquired by priority
of utilization, and this is as it should be from the necessities of
the country. But two important qualifications are needed. The _user
right_ should attach to the _land_ where used, not to the individual or
company constructing the canals by which it is used. The right to the
water should inhere in the land where it is used; the priority of usage
should secure the right. But this needs some slight modification. A
farmer settling on a small tract, to be redeemed by irrigation, should
be given a reasonable length of time in which to secure his water right
by utilization, that he may secure it by his own labor, either directly
by constructing the waterways himself, or indirectly by coöperating
with his neighbors in constructing systems of waterways. Without
this provision there is little inducement for poor men to commence
farming operations, and men of ready capital only will engage in such
enterprises.
The tentative bills submitted have been drawn on the theory thus
briefly enunciated.
If there be any doubt of the ultimate legality of the practices of the
people in the arid country relating to water and land rights, all such
doubts should be speedily quieted through the enactment of appropriate
laws by the national legislature. Perhaps an amplification by the
courts of what has been designated as the _natural right_ to the use of
water may be made to cover the practices now obtaining; but it hardly
seems wise to imperil interests so great by intrusting them to the
possibility of some future court made law.
THE LANDS SHOULD BE CLASSIFIED.
Such a system of disposing of the public lands in the Arid Region will
necessitate an authoritative classification of the same. The largest
amount of land that it is possible to redeem by irrigation, excepting
those tracts watered by lone springs, brooks, and the small branches,
should be classed as irrigable lands, to give the greatest possible
development to this industry. The limit of the timber lands should
be clearly defined, to prevent the fraudulent acquirement of these
lands as pasturage lands. The irrigable and timber lands are of small
extent, and their boundaries can easily be fixed. All of the lands
falling without these boundaries would be relegated to the greater
class designated as pasturage lands. It is true that all such lands
will not be of value for pasturage purposes, but in general it would be
difficult to draw a line between absolutely desert lands and pasturage
lands, and no practical purposes would be subserved thereby. Fix the
boundaries of the timber lands that they may be acquired by proper
methods; fix the boundaries of the irrigable lands that they may also
be acquired by proper methods, and then permit the remaining lands to
be acquired by settlers as pasturage lands, to the extent that they may
be made available, and there will be no fear of settlers encroaching on
the desert or valueless lands.
Heretofore we have been considering only three great classes of
lands--namely, irrigable, timber, and pasturage lands, although
practically and under the laws there are two other classes of lands
to be recognized--namely, mineral lands, _i. e._, lands bearing lodes
or placers of gold, silver, cinnabar, etc., and coal lands. Under the
law these lands are made special. Mineral lands are withheld from
general sale, and titles to the mines are acquired by the investment
of labor and capital to an amount specified in the law. Coal lands
are sold for $20 per acre. The mineral lands proper, though widely
scattered, are of small extent. Where the mines are lodes, the lands
lie along the mountains, and are to a greater or less extent valueless
for all other purposes. Where the mines are placers, they may also be
agricultural lands, but their extent is very limited. To withhold these
lands from purchase and settlement as irrigable, timber, and pasturage
lands will in no material way affect the interests of the industries
connected with the last mentioned lands. The General Government
cannot reasonably engage in the research necessary to determine the
mineral lands, but this is practically done by the miners themselves.
Thousands of hardy, skilful men are vigorously engaged in this work,
and as mines are discovered mining districts are organized, and on the
proper representation of these interested parties the mineral lands
are withheld from general sale by the Land Department. Thus, proper
provision is already made for this branch of the work of classification.
In many parts of the Arid Region there are extensive deposits of
coal. These coal fields are inexhaustible by any population which the
country can support for any length of time that human prevision can
contemplate. To withhold from general settlement the entire area of the
workable coal fields would be absurd. Only a small fraction will be
needed for the next century. Only those lands should be classed as coal
lands that contain beds of coal easily accessible, and where there is
a possibility of their being used as such within the next generation
or two. To designate or set apart these lands will require the highest
geological skill; a thorough geological survey is necessary.
In providing for a general classification of the lands of the Arid
Region, it will, then, be necessary to recognize the following classes,
namely: mineral lands, coal lands, irrigable lands, timber lands,
and pasturage lands. The mineral lands are practically classified by
the miners themselves, and for this no further legal provision is
necessary. The coal lands must be determined by geological survey.
The work of determining the areas which should be relegated to the
other classes--namely, irrigable, timber, and pasturage lands--will be
comparatively inexpensive.