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.
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.
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.
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.
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.
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.