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Article Title: El Dorado on the Platte: The Development of Agricultural Irrigation and Water Law in Nebraska, 1860-1895

Full Citation: Sam S Kepfield, “El Dorado on the Platte: The Development of Agricultural Irrigation and Water Law in Nebraska, 1860-1895,” Nebraska History 75 (1994): 232-243

URL of article: http://www.nebraskahistory.org/publish/publicat/history/full-text/NH1994ElDorado.pdf Date: 8/05/2013

Article Summary: Nebraska irrigation began as an effort to adapt to a semiarid region prone to droughts. Water law developed in a single generation at the end of the nineteenth century, giving the state control of water distribution.

Cataloging Information:

Names: Samuel Aughey, Charles Dana Wilber, William R Akers, George W Fairfield, Henry St Rayner, Asa B Wood, Charles Purnell, William Ellsworth Smythe, Elwood Mead, Lorenzo Crounse, Silas A Holcomb

Terms of Water Law: reasonable use, prior appropriation, riparian rights, permit systems, beneficial use

Keywords: Lincoln County Ditch Company, Kearney Canal, William R Akers, Charles W Ford, Farmers’ Canal Company, George W Fairfield, Minatare Irrigation Ditch Company, Henry St Rayner, “Rayner law” (1889), Asa B Wood, Gering Weekly Courier, Charles Purnell, William Ellsworth Smythe, State Irrigation Association, Populists, Republicans, 100th Meridian, National Irrigation Congress, Akers law (H.R. 443, 1895), agribusiness

Photographs / Images: chart showing departures from average annual in Nebraska, 1850-1989; William R Akers; Asa B Wood; map showing irrigation ditches in Scotts Bluff and Cheyenne Counties, 1894; Charles Purnell; broadside advertising 1896 irrigation convention in Lexington; C B Purdy

BL DORADO ON THE PLATTE: The Development of Agricultural Irrigation

and Water Law in Nebraskal 1860 -1895

BySam S Kepfield

Irrigation was an indispensable element its inhabitants want to exploit, and what spite huge crop losses and reports of fam­ in the settlement of western Nebraska dur­ they can exploit. 1Space as a factor is self­ ine in Kansas, land boosters and settlers ing the closing decades of the nineteenth explanatory; the need for irrigation came who wanted to believe them saw the century. In filling the public domain west about only as settlers crossed the 100th drought as an aberration. of the 100th Meridian, European settlers Meridian into a semiarid region prone to Nevertheless, the drought was a fact, encountered a land and quite un­ droughts. The interaction of culture and and some took steps to adapt. Washing­ like anything they had known in the environment to produce a modern irriga­ ton M. Hinman, a Pennsylvania millwright wooded, humid eastern states. AE succes­ tion regime in fact and in law took place who settled near the confluence of the sive waves of settlers attempted to build over a relatively short period, no more North and South Platte rivers, built the first an agricultural society on the plains, than a generation. documented irrigation canal in Nebraska largely staying with their old farming prac­ The climate of the was a in March 1863,diverting water from the tices, they eventually saw irrigation as a puzzle that settlers did not decipher until south bank of the six miles necessity. the mid-1890s. It is perhaps most helpful west of Fort McPherson. A year later, John AE the need to divert precious water to characterize the region in terms of what Burke of nearby Cottonwood Springs built from the sparse streams that crossed the it is not, rather than what it is. It is not a a canal below Hinman's. Both were aban­ plains became clearer, so did the need to lush, humid ; neither is it an arid doned after 1865, due to the Indian wars adapt a legal system made irrelevant, desert. Yet it is entirely possible for the in the area. However, both men demon­ even antidevelopmental, by geography. A Great Plains to take on either manifesta­ strated the practicability of irrigating crop­ system of water law that awarded eastern tion, at times in alternating years. It was land during the 1863-64 growing seasons.' landholders rights simply because their this aspect of the semiarid climate that ini­ After its founding as a city in 1866, land bordered a stream was inimical to tially lured settlers onto the expanses of North Platte briefly became a center for creating a system of irrigation ditches to the Great Plains, and then destroyed their irrigation activity. In 1870a group of busi­ water plains homesteads. Bythe time set­ crops and their hopes. nessmen organized the lincoln County tlers moved onto the plains in the 1850s, In 1878 Major John Wesley Powell Ditch Company, and built a canal on the riparian rights had been altered by prac­ drew a line of demarcation at the 100th north bank of the Platte River three and a tice, but they were still found wanting. Meridian. West of the line, rainfall aver­ half miles west of the city. It ran northeast Plains settlers and lawmakers borrowed aged less than twenty inches per year, and for half a mile and turned east for another from miners in California in adopting the was insufficient to sustain three and one-half miles, to a point half a system of prior appropriation, which without irrigation. To read Powell's state­ mile east of North Platte. It averaged two operated on a first-in-time, first-in-right ment that in the semiarid region "agricul­ feet deep and three feet wide, could flood principle. ture will not be uniformly successful from 13,000acres of land, and cost all of $600.5 Great Plains water law developed in re­ season to season.. .it may be doubted Although used mainly for stock watering, sponse to variants in culture, space, and whether, on the whole, agriculture will it was rendered useless by increased pre­ time. Irrigation is primarily an economic prove remunerative" is to know, in a nut­ cipitation in the late 1860s. phenomenon, and as such the impact of shell, the story of plains farming in the lat­ Meanwhile, soldiers at nearby Fort culture on irrigation can be measured by ter half of the nineteenth century.' McPherson were building ditches to irri­ the economic potential of an area, what For centuries, droughts have occurred gate their post garden." In 1872 Fort Sidney on the Great Plains every twenty years or soldiers constructed a canal on Lodge­ Sam S. Kepfield holds alD. degree and an MA. so, as measured by tree-ring records taken pole Creek to water the lawn and trees of in history from the University ofNebraska-Lincoln. from western Nebraska." A drought hit the the barracks and for a vegetable garden. He is currently a doctoral candidate in history at plains around 1858,as settlement was get­ They ran a small ditch around the parade the University of Oklahoma. ting underway, and lasted until 1866.De­ grounds, and long after Fort Sidney was

232 Irrigation in Nebraska abandoned in 1894, rows of cottonwood lowest order was being pushed by then­ reached the Nebraska-Wyoming border.in and cedar lined the ditch routes.' Because renowned academics (Wilber was 1867,it took another twenty yearsJfor of their novelty, these early efforts had no president of the Nebraska Academy of settlement to catch up. Not until 1885did effect on the Nebraska law of waters. Sciences), and as such was given great freeholders begin claiming homesteads in Irrigation lay quiescent for the 1870s credence. the Nebraska Panhandle, along the North and most of the 1880s.The brief drought However, both men were ascribing hu­ Platte River. Settlers drove out the cattle that came in 1874 might have spurred man causes to a wholly natural occur­ herds that dominated the public domain more interest and activity, had it not been rence, the variability of the semiarid plains in the Panhandle with herd laws; overshadowed by a plague of grasshop­ climate, lulling settlers into a false sense of townsites were platted, and claim shacks pers that lasted until 1877. After the grass­ security. Boosters for towns and the state dotted the area by 1887. The rapid expansion of settlement be­ 15 yond the 100th Meridian in the 1880slaid the foundation for prolonging the crash to 10 come. Railroads lured settlers to the west­ I II I , 5 • . ern half of the state in huge numbers after 1885.Credit was easy, supplied by eastern I I!ll L111 I . illl!l II. II LI IJ Ib I.,., t. financiers taking note of the boom in agri­ P11lr IIIiIIJ III­ ~ p r IIIr ~ ~ cultural production as the nation recov­ -5 • III ~ , • ered from the depression of the 1870s. -10 Terms were generous, and those receiving credit were prone to extravagance, 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 overinvestment, and speculation, with a YEARS consequent inflation in land values. (Average annual precipitation, 22.31 inches) Unfortunately, the boom in agriculture Annual Departures from Average Annual Precipitation in Nebraska, 1850-1989. and settlement coincided with the onset Courtesy of the Conservation and Survey Division, Institute of Agriculture and Natural Resources, University of Nebraska-Lincoln. of another period of drought beyond the 100th Meridian. Mortgage payments came hoppers left, men became enamored of seized upon the works of Wilber and due and were foreclosed upon, leaving the notion that " follows the plow." Aughey and incorporated them into pro­ mortgage companies with near-worthless Two Nebraskans, University of Nebraska motional literature. Irrigation in the 1880s deeds, which in turn caused them to fail. professors Samuel Aughey and Charles was not only seen as unnecessary, it was The boom was clearly over. By 1888ap­ Dana Wilber, were the most vocal propo­ considered libelous to even suggest in peals for relief, mainly seed grain, were nents of this idea. Aughey argued that the print that parts of the state might require crossing the desk of Governor John M. disappearance of buffalo grass and its re­ irrigation for successful husbandry. Thayer with increasing regularity from placement by crops or eastern grasses, The most prominent canal built during those who had stayed on their claims. along with the planting of timber, was in­ this period, the Kearney Canal, began in Something more than relief and idle creasing rainfall on the plains. Aughey 1882 partly as an irrigation project. hopes for rain was needed. also wrote that the cultivation of the prai­ Boosterism, though, soon overtook agri­ There were no more astute observers rie sod increased its absorptive power culture, and the Kearney Canal was being of this fact than a small band of men who (and, indirectly, precipitation)." touted as the means to build a modern in­ had taken up claims near Gering in Scotts Wilber also held cultivation respon­ dustrial city on the plains, rivalling Minne­ BluffCounty. Irrigation in the North Platte sible for increasing rainfall. It changed the apolis." In 1890 the Great Kearney Boom Valley began without fanfare in 1886, land from a "hot, dry surface to a cool, collapsed, taking the canal with it. when B.F.Gentry borrowed a team of condensing surface." Moisture over tilled The backers of the Kearney Canal did horses and a scraper and plowed a small land would condense as dew and , make one lasting contribution. Elisha furrow a mile and a half from Winters and not be blown away by hot winds. Calkins, an investor in the canal and a Creek to a patch of millet that was wither­ 'The plow will go forward," he told the state senator, successfully sponsored a bill ing in the summer heat. Gentry claimed state horticultural society in 1879, "God in 1877 that recognized irrigation ditches he was probably inspired by the ditch sys­ speed the plow.v'Wilber also believed as works of internal improvement. tem at nearby Fort Sidney." that electrical currents along railroad Calkins's bill also gave ditch companies The next year, William R. Akers arrived tracks and telegraph wires were providing the power to condemn land along their in the valley with several other men who a pathway to attract rainfall. toWhat routes, much like railroad companies.12 followed him from . Akers had sounds today like pseudoscience of the Although the Union Pacific Railroad been born in Ohio, raised in Iowa, fought

233 Nebraska History - Fall 1994 in the CivilWar and come out unscathed, loan the company $60 secured on a mort­ Power Company. They faced the same and settled down to practice law near Fort gage note. It took an eight-day trip by problems, met them in approximately the Collins, Colorado, in 1872.Akers later mule team to Sterling, Colorado, to pur­ same way, and after a century, all of these served in the Colorado House of Repre­ chase used scrapers, but the Minatare Irri­ early canals were still in operation." sentatives before moving to the Platte Val­ gation Ditch Company was in business. 17 Because of their efforts, Scotts Bluff ley in Wyoming in 1884.14While in Colo­ Work on the ditch began immediately, County in 1889 had more irrigators than rado, Akers apparently picked up on the and by August 1888it was complete. In an any other county in Nebraska (seventy in irrigation activity occurring in the South economy hard-pressed for specie, the all). It was third in irrigated acreage, with Platte Valley in the 1870s, the Union shareholders purchased stock the only 2,753 acres, to 3,049 for Lincoln County colony at Greeley the most famous, way they could, with their labor. To buy a and 3,154 acres for Cheyenne County." knowledge that he would apply to the The men behind these first irrigation Panhandle. companies were of a kind. In a raw, rough BySeptember 1887 it was clear to frontier area, they were about as close as Akers and his main partner, Charles W. one could get to an elite. Kansas historian Ford, that in the Panhandle nature would C. Robert Haywood called them "the civi­ prove scant help in raising crops. On the lized element" in his study of cattle towns. sixteenth of that month, Akers and Ford They were the merchants and profession­ posted a notice along the banks of the als who had chosen to go west, and ini­ North Platte, one mile east of the Wyo­ tially found a fluid social structure, where ming line, announcing their intention to they naturally gravitated towards the top. divert water from the river. Ford rode one Active in local politics (usually, though hundred miles on horseback to the not exclusively, Republican) as well as in county seat at Sidney to record the notice business affairs, they presided over the so­ with the county clerk's office, and the cial and political circles in the Panhandle Farmers' Canal Company was in about 1888.21 business. IS To them, starting an irrigation com­ Construction on the ditch began in pany to combat the drought was more March 1888.Short on cash, the sharehold­ than a practical response to a climatic ers of the Farmers' Canal Company fact. It was a means of civic and internal picked bleached bones from the sur­ improvement, which would boost the rounding countryside for cash to pur­ nearby town and bring in more settlers, a chase scrapers. By October 1890 they pattern which was not confined to the William R. Akerspioneered irrigation in the Panhandle of Nebraska, or to irrigation had finished ten miles of ditch, but before Scottsbluff area. (NSHS-L514) they could build more, undercapital­ companies." ization forced them to sell the project to a $200water right, or acquire a $100share The irrigationists found allies in coun­ group of eastem financiers." Despite this of stock (largely speculative in the early cils of govemment. During the 1889legis­ initial failure, Akers's greatest contribu­ days), the directors allowed a person ten lative session, Representative Henry St. tions to the irrigation movement in Ne­ cents for each cubic yard of dirt moved, Rayner of Sidney shepherded the state's braska were yet to come. and paid those with horse teams $4 a day. first true irrigation law through the legisla­ At the same time, a short distance Similar methods were used to payoff the ture. The Rayner law, as it became away, another group of men gathered to annual assessments for maintenance on known, conferred the right to appropriate begin another ditch company, this time the ditch; those who failed to perform water for any useful or beneficial purpose. with considerably more success. George their duties had their water shut off.ISIt All that was required to obtain the right W. Fairfield, a Plattsmouth surveyor, knew was Locke's value theory of labor brought was that a notice be posted on the banks western Nebraska from working there in to life on the frontier. at the intended point of diversion, and a the 1870s; in 1885he started a claims­ The success of the Minatare Irrigation duplicate notice be filed in the county locating business in Sidney while main­ Ditch Company quickly inspired others, clerk's office. The law limited appropria­ taining a homestead in the area near and by the end of 1889several other irri­ tors to as much water as was needed for Scott's Bluffs. In December 1887Fairfield gation cooperatives had sprung up - the good husbandry, and also provided that assembled seven other men in his sod Winters Creek Canal Company, the Enter­ in time of scarcity, water could be appor­ house to organize a ditch company. They prise Ditch Company, the Castle Rock Irri­ tioned among all appropriators regardless lacked even the most basic start-up capi­ gation Canal and Water Power Company, of their initial allotment." Although not a tal, but one man persuaded his wife to and the Chimney Rock Irrigation and pure appropriation statute, the Rayner law

234 Irrigation in Nebraska was the beginning of central administra­ that would have to await the Bureau tion of water rights in Nebraska. of Reclamation three decades into the As irrigation became another facet of future)." boosterism, it naturally attracted the atten­ Gering proved to be ahead of its time tion of local editors. Gering, Nebraska, in 1889.Sixtymiles to the south, in Sidney, was the center of the irrigation movement the local paper declared that the planting in the Panhandle, and Asa B. Wood, who of trees would render irrigation superflu­ edited the Gering Weekly Courier, became ous, at least temporarily." It was a senti­ one of its most strident advocates. As the ment shared by state officials in eastem boom was beginning, Wood published a Nebraska, struggling to attract settlers to letter in which the writer proclaimed the Nebraska (and away from Kansas or the Gering area "the new El Dorado on the Dakotas). To admit that irrigation was valley of the North Platte."24 As more and needed, or required, in one-half of the more ditch companies were formed, state would send the much-desired immi­ Wood called for regular meetings for ex­ grants to other, less-honestly advertised changing information on irrigation. In spots. As things turned out, denying the May 1889Wood served as secretary to the need for irrigation caused more damage first of what would become many irriga­ than an admission would have. The sum­ tion meetings held in western Nebraska mer of 1890,the hottest on record, com­ over the next five years, where farmers pleted a disaster that had been building traded information garnered from their since 1885,Corn production plummeted trial-and-error methods. They also heard from 149million bushels in 1889to 55 mil­ William Akers speak of the possibilities of lion bushels. With com and other crops water power on the North Platte (a feat gone, and with little cash reserved, settlers Asa B. Wood, Gering newspaper editor, ---C1! boosted irrigation in tne Panhandle. ~I (NSHS-L514) T.24 o ...... ~i " • R.58 R.65 R.54 R.53

R,52

./':... NORTH R,51 R,50

" "

R,49

,-.l99nS.BLU~FCO" _, BANNER CO.

o 5 MILES <;->« Completed ditches ....._""'\ool Proposed Ditches

T.18

Irrigation ditches in Scotts Bluffand Cheyenne Counties, Nebraska, 1894. T.17

235 ..------­

Nebraska History - Fall 1994

who had arrived on the High Plains only editor of the OmahaBee, to let him write minded expedient of augmenting the a year~()r two earlier began leaving in a series of articles expounding upon the moisture level. Smythe and later irrigation droves. need for irrigation, and with much reluc­ disciples fell prey to subjective terminol­ Those who remained sent up a cry for tance, the request was granted. The series ogy that reflected an eastem, humid chau­ relief supplies and seed grain, which char­ of seven articles began running on Janu­ vinism. It did not ask, as did University of ity did its best to fulfill. Beginning in No­ ary 4, 1891,and officially launched the Kansas historian James C. Malin, if the vember, the Nebraska State Relief Com­ Great Irrigation Crusade. ''The single great­ plains was submarginal, for what, exactly, mission did its utmost to respond to re­ est problem that concerns the develop­ was it submarginal? One might just as well ports of destitution from settlers west of ment of Nebraska is the problem of irriga­ claim that from a plains perspective, the the 100th Meridian. Generous donations tion," the first began." In this, Smythe area east of the 100th Meridian was from citizens across the nation failed to neatly captured the essence of the move­ "superhumid."32 meet the demand, and the Nebraska Leg­ ment for the next five years. At any rate, Smythe soon had islature was forced to vote $100,000 in irrigationists calling conventions to pres­ bonds for the purchase of relief supplies, sure the legislature into action. First and allow counties and townships to do McCook, then Sidney, and then Lincoln the same." hosted irrigation conventions in January Reliefwas an immediate, palliative re­ and February 1891.33The first State Irriga­ sponse to the disaster that befell westem tion Association convention was called to farmers in 1890.The legislature also had order in Lincoln on February 11, 1891, before it a long-term, preventive measure and set about correcting the flaws in in the form of HR. 147. Introduced on Purnell's bill." January 19, 1891,by Populist Representa­ The conventioneers incorporated tive Charles Purnell of Perkins County, the many of the resolutions passed in bill was referred to Purnell's own Commit­ McCook and Sidney. Modeled primarily tee on Irrigation and remained there for on the laws of California and Wyoming, nearly a month." In its original form, HR. the irrigationists called for the creation of 147was little more than a lukewarm re­ the office of state engineer, appointed by working of the 1889 Rayner law. Under the governor, heading up a state board of HR. 147,landowners could petition for control. The superintendents of the six irri­ the creation of an irrigation district. The gation districts would comprise the re­ district could then call elections for the is­ mainder of the board, which would be suance of bonds, and levy an assessment charged with adjudicating rights on each on all real property within its boundaries stream, and examining all irrigation works to pay them off.29 in the state." Below the superintendents, In introducing HR. 147, Purnell mis­ Populist CharlesPurnell's H.R. 147was the district supervisors were charged with first attempt to codify priorappropriation read irrigation sentiment in the Pan­ intostate law. (NSHS-L514) making water measurements, determining handle. Led by William Ellsworth Smythe, the suitability of land for irrigation, and a young Bostonian transplanted to Ne­ More than simply allowing farmers to surveying canal and reservoir sites." braska, the irrigationists began organizing survive droughts, the campaign for irriga­ More important, Purnell's HR. 147as in January 1891with the purpose of pass­ tion sought to enable them to remain and amended at the behest of the irrigationists ing an irrigation statute modeled on those build a modem society that included agri­ was the first attempt to codify prior appro­ of Colorado, Wyoming, and California. culture as but one component. Opening priation doctrine into state law. It made all Smythe, a devotee of Horace Greeley, the Tumerian "safety valve" would pro­ water flowing in navigable streams public came west in 1889to edit the Kearney En­ vide a vast new market for eastern goods property, with rights granted only for ben­ terprise. After the Kearney Boom col­ and railroads, and could even serve as a eficial use. However, in times of shortage, lapsed, along with the canal he champi­ model for community planning on a pre­ water commissioners who headed up oned, he left Kearney for Omaha. Smythe viously unimagined scale. Irrigation be­ each irrigation district had the power to traveled through southwestern Nebraska came as much a social movement as it apportion water.v'This provision ran in the summer of 1890 to visit a colleague was an engineering problem." counter to a strict rule of appropriation, in New Mexico. The sight of ruined crops It was, strictly speaking, not really a which would have required in time of and destitute farmers moved him to seek western solution at all. It viewed the shortage that the appropriators with later a solution, and he hit upon irrigation. plains as deficient in rainfall, a condition rights have their water shut off.The worst Smythe persuaded Edward Rosewater, which could be cured only by the eastem­ defects of the 1889 Rayner law would be

236 Irrigation in Nebraska cured and desperately-needed irrigation Geographically, agrarian discontent tion to postpone S.F. 19 shows much the investment encouraged. Another month and the Populist vote were the greatest in same pattern as that on H.R. 147 two years passed before H.R. 147 came to a vote on an area that ran in a wide diagonal swath earlier. The senate motion carried by a the floor of the house, and when it did from Hitchcock County in the southwest, vote of twenty-one to four, with four ab­ Purnell proceeded to strike most of the to Antelope County in the northeast. It sent. Among the twenty-one votes to post­ amendments, to the consternation of the was the leading edge of settlement in pone were those of the thirteen Populists irrigationists. 1890,straddling the 100th Meridian, and and one Democrat-Populist." H.R. 147 failed on March 21, 1891,with the area hardest hit by the drought. The The reasons for the rejection of S.F. 19 thirty-five voting aye, thirty-two nay, and wetter regions of the east gave the Popu­ were unchanged from 1891. Farmers thirty-three not voting, thus depriving it of lists a comparatively low percentage of found it "complicated, cumbersome, and a constitutional majority." Populist sup­ the vote in 1890.42The far western reaches involved a multitude of expensive offi­ port for the measure was noticeably ab­ of the Panhandle were more recently cials, not warranted by the present or sent, which doomed it to failure in a settled, and also more accustomed to likely development of irrigation as to the chamber in which seventy-six of one hun­ drought. state at large. "48 George Fairfield, still run­ dred members were Populists. Of the fifty­ Within the counties themselves, Popu­ ning the Minatare Irrigation Ditch Com­ four Populists in the house, twenty-two list power was concentrated in the coun­ pany, wrote that besides being unwieldy, voted against H.R. 147, and ten were ab­ tryside (where they regularly garnered 80­ the creation of so many new offices was sent. Those Populists opposing or absent 90 percent of the vote), while Republi­ probably unconstitutional. Better that the were, without exception, farmers-sup­ cans ruled the towns. Populism hardened state should function under the present posedly the very people the bill was de­ a pre-existing rural/urban split, where inadequate law rather than submit to this signed to aid. Main Street was the Establishment, and attempt at grandstanding by a politician How could a bill which was ostensibly the Establishment was Republican." As wholly ignorant of irrigation, merely seek­ aimed at improving the situation of the ag­ irrigation became another means of town­ ing to make a name for himself.vf'airfield ricultural sector fail in a legislature domi­ building, it was adopted by the Republi­ and other irrigationists resigned them­ nated by farmers? Several factors - poli­ can Establishment in the West. Assuch, it selves to a two-year wait for their next tics, geography, and status - provide an would have to await a Republican legisla­ opportunity. explanation. Politically, the Populists ture before any irrigation scheme could The prospects for a record harvest of were not overwhelmingly successful in be enacted. corn, and a good crop, looked their reform efforts, due to inexperience Although the political climate changed bright in the winter and spring of 1894.As and intra-party fighting. Neither did they two years later, a similar fate awaited the the summer wore on, temperatures rose, have an exclusive franchise on reform; next attempt at irrigation legislation. and rainfall became scarcer. By late July Republicans were just as likely to intro­ Lorenzo Crounse recaptured the gover­ the corn crop was at a critical stage; it duce reform measures in western legisla­ norship for the Republicans the previous needed rainfall to tassel and survive to tures as were Populists." fall. GOPstrength equalled the Populists harvest. Furthermore, antimonopolism was an in the senate, fourteen to fourteen, and What happened instead became the article of faith among the Populists. Hav­ surpassed it in the house, forty-nine to stuff of legend. On July 26, 1894, tempera­ ing come to power in 1890vowing to forty-one. On January 16, 1893, Populist tures in excess of 100 degrees combined smash railroad and grain elevator mo­ Senator J.H. Darner of Cozad introduced with stiffwinds up to fifty miles per hour nopolies, it was no small leap for Populists S.F. 19.441n content, it was virtually identi­ to wither the corn in a matter of hours. to imagine a "water monopoly," with an cal to the amended version of H.R. 147, The loss to the most severely hit area was unelected state engineer at the head, do­ and the same fate befell it.45 $100 million. Over 200 million bushels of ing the bidding of big water companies Senate file 19was referred to the Com­ corn had been expected; less than 13 mil­ along the Platte. Such was the case in mittee on Internal Improvements (which lion were actually harvested. The hardest Colorado, where farmers and the Popu­ Darner chaired) the next day, and re­ hit area was west of a line running from lists were convinced that water compa­ ported out a month later, on February 20, Furnas to Knox counties-almost pre­ nies were promising more water than was with the recommendation that it be cisely along the 100th Meridian. The need available and overcharging for that which placed on general file. On March 3 the for irrigation for the western half of Ne­ was.vlt was also the feared additional senate formed a committee of the whole braska had finally become undeniable. burden of taxation that caused the failure to consider the bill; it resolved that it be Many settlers repeated the pattern of of the 1891 bill." Hard-strapped farmers amended. On March 7 the committee of 1890-91 and abandoned their home­ were not about to pay additional taxes for the whole, on a motion from its chairman, steads. In Grand Island in the summer of an irrigation canal that might not even voted to indefinitely postpone the bill." 1894,the exodus was especially notable. serve them. . The breakdown by party on the mo­ "Every day from twenty to fiftyprairie

237 Nebraska History - Fall 1994 schooners pass through here," ran one ac­ Bythe mid-1890s the National Irriga­ count, "the emigrants expressing them­ ANNUAL ... tion Congress was still a going concern, selves in haste to get to some land where TH though a diminished one. Investors were CONVENTION c it occasionally ."? + + ~ cautious in the wake of the Panic of 1893, Among those who stayed, calls for re­ and infighting between Smythe and Wyo­ lief began pouring into the office of Gov­ ming Senator Joseph Carey over land ces­ ernor Crounse almost immediately. The sion pulled the movement farther out of drought of 1894 resurrected the Nebraska Smythe's control. Gatherings in Los Ange­ State Relief Commission, which had per­ les in 1893and Denver in 1894produced formed so adrnirably in 1891. Governor much high-flown rhetoric, but little of Crounse appointed the members on Octo­ substance.57 ber 28, 1894,with Rev. Luther P. Ludden, Irrigation, not surprisingly, thus be­ secretary of the commission from 1890 to came an issue in the 1894elections, par­ 1892,as the chairman." ticularly in the region where it had been The drought of 1894 only confirmed born - the Panhandle. William Akers ran for all what the irrigationists had known on the Republican ticket in 1894 to repre­ for years - that the "Mythof the Garden" sent the Thirtieth District in the state sen­ was nothing more than that. AS one ate. He received the strong endorsement anonymous letter to the Gering Weekly of the Gering Weekly Courier, with Asa Courier noted, Wood reminding voters that Akers "does The idea of increasing rainfall is the dryest know something about irrigation, while [sic] of rot, as we have examined the gov­ October 7th, 8th and 9th, his opponent Schrader would not know ernment report of the rainfall at Fort an irrigation canal from a squirt gun."58 Laramie for the last 35 years, and there Akers's strong support of irrigation pro­ wasn't anymore rain in the last five years than in the first five. One asks "are we in the pelled him to a more than 70o-vote major­ arid west?" We answer, did you ever see a ity over his Populist opponent, and later

year in Scotts BluffCounty that you couldn't O,,,tors E,porl" .It)d SclenlUlc Spedllilaia In P",cllcal '''1'1l1 Ttl"'

238 Irrigation in Nebraska its distribution and price so that it may be board of control with a State Board of Irri­ "might be of some benefit to the users of to them a source of pecuniary benefit gation made up of the governor, the attor­ water, as well as to sellers," and had been rather than an engine of oppression in the ney general, and the commissioner of outvoted on every attempt. He foresaw hands of speculators," with protection for public lands, with the state engineer act­ the bill encouraging investment in irriga­ water rights of appropriators, would en­ ing as secretary. The bill also limited ap­ tion projects, but warned the chamber courage development of projects in the propriators to that amount of water which that the speed with which the bill had western half of the state." could be applied to a "beneficial use." passed, coupled with the lack of amend­ The legislature first got down to the HR. 443 made all water flowing in natural ments from the floor, created a suspicion business of voting relief bonds, despite watercourses public property, and the of a water monopoly in the making." complaints that the measures passed four right to use it could never be denied (but In the short term, the law accom­ years earlier had exhausted the state's could be decreased in time of scarcity). plished what it set out to do. Under the bonded indebtedness limit. It voted Finally the act declared that water for the 1889 Rayner law, irrigators filed 789 $50,000 for immediate relief provisions, purposes of irrigation in Nebraska was "a claims, built 1,318 miles of ditch at a cost and $200,000 for seed and feed, and by natural want."64 of $1.45 million with another 909miles late March trains and wagons bearing pro­ Akers skillfullyguided both bills planned at a further cost of $1.3million, visions were on their way to settlers." through the legislature, speaking elo­ and the 1.06 million acres of land they ser­ Chances for success on irrigation legis­ quentlyon their merits before his senate viced saw a net rise in value of $9 million. lation were good, and the irrigationists colleagues, and appearing by request Under the new law, by the end of 1895 in­ went into the 1895 session determined not (and under protest from opponents) in vestors planned 2,111 miles of ditch, at a to lose the opportunity. Men of practical the well of the house chamber to answer cost of $6.2 million. The area of land to be experience, like William Akers, dotted questions." Irrigationists chose H.R.443as served doubled to 2.36million acres, and both houses. Populist influence in both the bill to push on this matter, but by late the increase in land values from the houses had waned considerably since March it had stalled in the house. The rea­ ditches was estimated at $18million." 1891. Republicans held seventy-two house son - a provision that repealed section By November 30, 1896, 362claims were seats, the Populists had twenty-two and 2034 of the Rayner law limiting each tract filed." the Democrats but six, and the GOP com­ of land to one irrigation ditch. It was a The Akers law (as it came to be called) manded a twenty-five to eight majority possible hindrance to development, but provided certainty for those contemplat­ over the Populists in the senate. The Sen­ the irrigation forces gave in when they re­ ing irrigation works, not just the legal cer­ ate Committee on Irrigation, which would alized their support of the repeal was en­ tainty of title, but the knowledge that the hold hearings on any bills, was made up dangering the entire effort. In little more water would be physically available for entirely of Republicans. than a week, H.R.443had been passed use.Plt served as the perfect embodiment Rather than lump all irrigation statutes and signed into law." of Gilded Age concepts about the proper into one bill, this time the irrigation back­ The voting for and against the bill sphere of the law, with regard to what le­ ers drafted two separate bills, and had a broke down into a familiar pattern. In the gal historian James Willard Hurst called version of each bill introduced into each house, H.R.443passed sixty-eightto the "release of individual creative energy." house, for a total of four. The firstset of twenty-one, with eleven absent. Of the The law, in Hurst's view, promoted and bills, S.F. 50 and HR. 332, created irriga­ twenty-one Populists in the house, fifteen protected this entrepreneurial spirit by tion districts and gave them the power to voted "nay," as compared to only two Re­ providing support of the organized com­ issue bonds for financing and levy assess­ publicans and four Democrats. In the sen­ munity, or by simply getting out of the ments for maintenance." After amend­ ate, where the bill passed twenty-nine to way.7! ments, the most controversial of which two with two absences, the two nays and That certainty and support were not exempted existing ditches from the law's two absences were all Populists-half without a price, however, especially in the operation, and much shuttling back and their strength in the upper chamber. conception of water as property. Riparian forth between the chambers, legislators The reasons were no doubt similar to rights, derived from English common law, approved H.R. 332by lopsided margins, those of 1891 and 1893, and voiced by held that water rights attached only to seventy-nine to one in the house and both Crounse and Holcomb in their re­ land abutting a watercourse, and that one twenty-seven to zero in the senate. spective addresses to the legislature in who owned such land could not diminish Holcomb signed it into law on March 27.63 January. A Republican member of the the streamflow. It was a rule that derived. The second pair of bills took a little House Irrigation Committee, J.W. Cole of from the English gentry, who saw quiet longer. S.F. 182 and HR. 443 actually set Hitchcock County, voted for the bill with enjoyment of property and water rights as up the administrative machinery for deter­ reservations. Cole led off by noting that, as an end in itself, and who were quite op­ mining water rights. They replaced an a member of the Irrigation Committee, he posed to any sort of industrial or commer­ unappointed state engineer in charge of a had tried to amend the bill so that it cial development. With the Industrial

239 Nebraska History - Fall 1994

Revolution in New England in the early ity, to be bought and sold on the open The Nebraska Supreme Court initially 1800s,that rule began changing, and wa­ market. California courts eventually ruled ruled in 1895 that riparian rights were ter law began changing to meet the reali­ against the miners, allowing the rights to vested property rights, and could be termi­ ties of economic development." water (but not the actual corpus itself) to nated only in the public interest. In 1903 it Courts eventually resolved the issue of become a commodity." reversed itself, and held that the Rayner competing uses by adopting the "reason­ Initially,anyone could take as much of law of 1889had outlawed riparian rights, able use" test. Justice Joseph Story, who a stream as his ditch could hold, as long but only after the date of its adoption. formulated the doctrine, argued that the as he was the first to lay claim to it, and Sixtyyears later, the court declared that it true test of the extent.of the use was could shut down later appropriators in had "misread" the law in earlier cases, whether or not it actually injured other times of scarcity." Concern over the de­ and placed the effective cutoff date for ri­ landowners." Just how to define "reason­ structive nature of hydraulic mining soon parian rights at April 4, 1895, the date of able" was left for other courts to decide. forced California courts, led by Justice the Akers law." Nebraska was thus left Reasonable use became, for all practi­ Stephen Field, to limit the right with the with the California system combining ri­ cal purposes, the doctrine of riparian familiar "reasonable use" test, and the leg­ parian and appropriative rights, as were rights, and began undergoing some inter­ islature followed suit in 1872.79Further­ all the other plains states which straddled esting modifications. Some courts began more, in 1886 the California Supreme the 100th Meridian." allowing a prior use for development to Court ruled that prior appropriation did The prior appropriation systems which halt a later development, adopting a prior­ not destroy all riparian rights, and so dual survive today bear little resemblance to ity system. 74Others began allowing diver­ systems of granting rights grew up.8°To the system which came out of the Califor­ sions of water for "public benefit.?" lessen confusion, the legislature passed nia gold fields a century and a half ago. As riparianism began looking more an irrigation district law the following "No longer do users take water," wrote and more like what would later become year, which allowed the districts to con­ one commentator in the 1920s, "nor can prior appropriation, it still did not recog­ trol distribution of water statewide." they if they will; it is doled out to them by nize irrigation for agriculture as a "reason­ Colorado's water rights system derived the state."87Thepermit systems adopted able use." In 1842 the Illinois Supreme in large part from former forty-niners who by Nebraska and other appropriation Court held that irrigation was an "artificial rushed to Pike's Peak in 1859,but Colo­ states require users to jump through a vari­ use," one which was not essential for rado never strayed from the strict appro­ ety of administrative hoops for practically man's continued existence, but served priation path. From the beginning, the every facet of irrigation, from applications merely to increase his comfort and pros­ right to appropriate waters was one that to use to changes in the manner and perity.I'This was the same year that John the state could never deny." An irrigation place of use. C. Fremont made his first trip across the district law passed in 1879 (and amended In light of the adoption of permit sys­ Great Plains, where such old concepts in 1881) served merely to supervise irriga­ tems by riparian states, such as Iowa, would finally break down. tion works, and left dispute resolution to there may be little practical distinction be­ The true development of Great Plains the courts. The courts, for their part, tween the two. It may even be a mistake water law, and Nebraska's in particular, promptly abolished riparian rights in the to speak of "riparian" or "appropriative" comes not from the East, as a Turnerian state." rights at all, which are secured by the indi­ theory might argue, but rather from the Colorado's system was copied and vidual. A more proper view might be to West. The best way to conceptualize wa­ altered by Wyoming, especially under adopt statist terminology of "grants" or ter law on the Great Plains is to see a Territorial Engineer Elwood Mead, whose "distribution" of water by a central author­ modified riparianism moving west collid­ passion for social engineering led him to ity to users. ing with a modified prior appropriation devise what was the most complex and The creeping introduction of "benefi­ system moving 'east. The parentage of centralized bureaucracy for setting water cial use," which acts in practice much Nebraska's system runs through Califor­ rights. The Wyoming system, later copied like the "reasonable use" of riparianism, nia, Colorado, and Wyoming in tum. by Akers and other Nebraska irrigationists, further erodes the idea behind appropria­ Prior appropriation began in the gold created a rigid hierarchical bureaucracy, tion. The two concepts were wedded fields of California in the 1850s. Both headed by the state engineer and four dis­ together by Frank 1.Trelease, a noted placer and hydraulic mining depended trict supervisors. The board of control had western water law commentator,into on what sort of water rights could be the power to adjudicate rights, measure "reasonable beneficial use," which holds gained, and settlers quickly divided into streams, and approve (or reject) permits that a particular use must not only fall two camps. The miners believed that wa­ to appropriate." within a class of uses held to be beneficial ter was a basic right connected only with After adoption of the Akers law in April under state statutes, and not only of ben­ certain activities, such as mining. Others 1895,court approval followed swiftly, but efit to the appropriator, but must also be a claimed that water rights were a commod­ the status of riparian rights stood in doubt. reasonable and economic use of the wa­

240 Irrigation in Nebraska

Irrigator C. B.Purdy of Minatare. (NSHS-171 .6-14) ter in view of present and future demands society, a promise that it failed to deliver the water politics of the region, and saw a on the source of supply." Beneficial use upon, due largely to growing contempt parallel." became the yardstick by which states for small farmers not easily given to Unfortunately, Worster's thesis applies approved or rejected applications for per­ change, and the movement's increasing only to the Southwest in general, and to mits, and the pioneer mindset that al­ domination by agribusiness." California in particular. The Great Plains lowed one to take as much water as one The cooperation between agribusiness saw no such concentration of land and could gave way to a more scientific and and federal bureaucracy, beginning in the federal water projects (and hence, devel­ structured means of distribution. New Deal era, led University of Kansas en­ oped a water rights regime different from What, in the end, did all this effortac­ vironmental historian Donald Worster to that of the arid Southwest). In fact, the complish? The immediate facts are appar­ see the West as a "hydraulic society," size of irrigated farms on the plains in the ent enough. Nebraska counted only modeled on the Oriental despotisms of decade 1890-1900 tended to be smaller 11,744 irrigated acres in 1889, but 148,538 the past. Worster borrowed his thesis from than non-irrigated farms, averaging fifty­ a decade later. The number of irrigators Karl Wottfogel, whose Oriental Despotism five acres in Nebraska in 1890, and jumped from 214 to 1,932 in the same pe­ demonstrated how irrigated agriculture seventy-seven acres in 1900.92 riod, 1889-99, and the Panhandle held the supposedly led to tyranny by a small, Irrigationbegan as a logical adaptation lion's share of both." technocratic elite. Worster looked at the to a semiarid climate by men from humid What of other, more long ranging increased concentration of land in the regions, and in typical fashion. Rather societal impacts? The Universityof Central Valley of California,sustained by than adapt their practices to the land, they Oklahoma's Donald 1. Pisani argues that cheap, federally-subsidizedwater, en­ bent the land to their will.To fullyexploit Smythe's reclamation movement held the gaged in intensive, often environmentally the agricultural potential of the Great greatest potential for reshaping western degrading agriculture, and dominating Plains, irrigation became big business, al­

241 Nebraska History - Fall 1994

most a religion for some like William 8 Samuel Aughey,Sketches of the PhysicalGeogra­ (Summer 1993): 37-46; Laws of Nebraska 1891,297­ Smythe and Elwood Mead. To complete phy and Geology of Nebraska(Omaha: DailyRepub­ 313. lican Book& Job Office, 1880),4447. the transformation of the semiarid plains 28 The bill was amended, and favorably recom­ from the Great American Desert to an irri­ 9 Charles Dana Wilber, "TheRelation of Geology mended on February 23, 1891. NebraskaHouse to Horticulture,"Annual Reports of the Nebraska Journal, 1891,924. gated garden, men shaped the law to their StateHorticulturalSociety, 1878-1879(Lincoln:State environmental needs, facilitating the ex­ 29 H.R. 147(1891),sec. 14, 12-15, 17,RG56, Ne­ Journal Co., 1879),91-92. braska Legislative Records, 1855-1972, ser.!, vo1.74, ploitation of natural resources they found 10 Charles Dana Wilber, TheGreatValleys and Prai­ NSHS. on the plains. ries of Nebraska and the Northwest (Omaha: Daily 30 OmahaDaily Bee,Jan. 4,1891,3. Although the rigid bureaucracy set up Republican Printing, 1881),86-88. 31 Donald J. Pisani, "Reclamation and Social Engi­ by Elwood Mead in Wyoming and Wil­ II Gene Hamaker, "TheKearneyCanal- Part 1," neering in the ProgressiveEra," Agricultural History liam Akers in Nebraska took control away in Tales of Buffalo County(Kearney, Nebr.:Buffalo 57 (January 1983): 49. from irrigators and placed it in the hands CountyHistoricalSociety, 1982),23-27. 32 James C.Malin,Historyand Ecology:Studies of of the government, it was the end result of 12Laws of Nebraska, 1877, 168. the Grassland, ed. Robert P. Swierenga (Lincoln: a familiar trade-off, that of freedom for 13B.F. Gentry,"FirstIrrigationin the NorthPlatte University of Nebraska Press, 1984),29. Valley," in AsaB.Wood, ed., PioneerTales of the certainty. Itwas a result the irrigators 33 McCook Tribune, Jan. 30, 1891,5;SidneyTele­ North Platte Valleyand theNebraskaPanhandle themselves desired, at least in the begin­ graph, Febr. 14, 1891, 1. (Gering:Courier Press, 1938),214. ning, to protect their investments of time, 34 NebraskaStateJournal, Febr. 12, 1891,8. labor, and capital. They created a legal re­ 14 Iowa Census of 1850Index, 1; 1890Census of Veterans, (microfilm), RG513, SG3 roll 2, NSHS; 35 H.R. 147(substitute) (1891),art. II, sec. 14-22, gime quite different from those of the Colorado Census of 1880Index, 4;ScottsbluffCounty RG56, ser. 1,vol. 76, NSHS. East; but also from the West, where prior Republican, Nebraska Irrigation An­ Jan. 22, 1915, 1; 36 Ibid., art. I. appropriation doctrine was first cogently nual1897 (Lincoln:A.G.Wolfenbarger& Co., formulated. 1897),62. 37 Ibid., art. III, sec. 1-7. 38 NebraskaHouseJournal, 1891, 1629-30. The irrigation culture that flourished in 15FirstBiennial Reportof the StateBoard of Irriga­ the Panhandle in the 1880s and 1890sal­ tion for the Years 1895 and 1896 (Lincoln:Jacob 39 K.D. Bicha, "WesternPopulists: MarginalRe­ lowed resettlement of a frontier already North& Co., 1897),15;LesterDanielson, "Irrigation," formers of the 1890s," Agricultural History 50 (Octo­ in Scottsbluffand the North Platte Valley, ed. ber 1976): 627-32. thought closed. The victory has waxed Thomas L.Green (Scottsbluff, Nebr.:Star-Herald and waned over the past century, and irri­ Press, 1950),74. 40 Robert W. Larson,Populism in the Mountain gation costs threaten its stability as the West (Albuquerque: University of New Mexico 16Danielson, "Irrigation," 75-76; GeringWeekly Press, 1986), 152-53. twenty-firstcentury approaches. It is none­ Courier, Nov. 13,1891,2. theless an enduring effort, this intertwin­ 41 WilliamF. Zimmerman, "Legislative Historyof 17 MinatareIrrigationCanal Papers, 1887-1896, MS Nebraska Populism, 189(}'1895" (master's thesis, Uni­ ing of the law and the environment, and if 467 (microfilm), NSHS. versityof Nebraska, 1926),33. it is not quite the EI Dorado on the Platte 18 Ibid., Minutesof the Board of Directors,7-9, 30, 42 John D.Barnhart, "Rainfalland the Populist men dreamed of, then it is surely not for 48-53. Partyin Nebraska,"AmericanPolitical Science Re­

lack of effort. 19 Forty-Ninth Biennial Reportof theStateDepart­ view 19(April 1925): 534-38. ment of WaterResources to the Governorof Ne­ 43 Frederick C. Luebke, "MainStreet and the Notes braska, 1991-1992,72-75. Countryside: Patterns of Votingin Nebraska During

20 Bureau of the Census, Census Reports, 1900,vol. the Populist Era," NebraskaHistory50 (Fall 1969): 1 Robert F. Berkhofer,Jr., "Space,Time, Culture, 263-64. and the New Frontier," Agricultural History38 (Janu­ 6, pt. 2, Crops and Irrigation (Washington: 1902), all' 1964): 24. 870. 44 NebraskaSenate Journal, 1893, 94. 21 C. Robert Haywood, Victorian West: Class and 2 John WesleyPowell,Reporton the Lands of the 45 S.F. 19(1893), RG56, ser. 2,vol. 11,NSHS. Arid Regionof the UnitedStates, 45th Cong.,2d sess., Culture in Kansas CattleTowns (Lawrence:Univer­ sity Press of Kansas, 1991),38-52. 46 Nebraska Senate Journal, 1893, 104-5, 345,469­ 1878, H.R. Exec. Doc. 73,serial 1805, 13-14. 70,524-25. 22 Paula M. Nelson,Afterthe West was Won:Home­ 3 HarryE.Weakley,"Historyof Drought in Ne­ 47 Ibid., 525. braska,"Journal of Soil and WaterConservation 17 steaders and Town-Builders in Western SouthDa­ (November-December 1962): 271. kota, 1900-1917(Iowa City: University of Iowa Press, 48 GeringWeekly Courier, Febr, 3, 1893, 2. 1986),84. 49 4 LodgePoleExpress, Apr.2, 1896,6. Ibid., Febr. 17, 1893, 1. 23 CompiledStatutes of Nebraska 1881 (4th ed. 50 NebraskaStateJournal, July 27, 1894,3. 5 Omaha Weekly Herald, May11, 1870,2. 1889), ch. 93a, art. 1,sec. 8; art. 2,sec. 13. 51 Reportof the NebraskaStateReliefCommission 6 Miller J. Stewart, "ToPlow,To Sow,To Reap, To 24 GeringWeekly Courier, Mar. 22,1888,1. Mow: The U.S. ArmyAgricultureProgram," Ne­ to the Governorof the Stateof Nebraska, 1895, braskaHistory63 (Summer 1982): 209. 25 Ibid., May4, 1889,2-3. Luther P. Ludden, comp., RG33, box 2, 6, 19-20, NSHS. 26 SidneyTelegraph, Apr.20, 1889, 1. 7 FortSidney Post Medical History, 1871-1892, 52 GeringWeekly Courier,Febr. 2, 1894, 1. RG518, (microfilm), ser.!, roll 3, 261,266,286.Ne­ 27 Sam S. Kepfield,"'AGreat Deal LikeSmallpox': braska State HistoricalSociety (hereafter cited as The DestitutionBusinessand State Drought Reliefin 53 Ibid., Aug. 10, 1894, 1. NSHS). Nebraska, 189(}'1895," Heritageof the GreatPlains26

242 Irrigation in Nebraska

54 O.V.P. Stout, "WaterSupply in Nebraska,"Bulle­ the Year1895 (Lincoln: Jacob North & Co., 1896), 81 Supplement to Deering'sStatutes and Codes of tin of theAgricultural ExperimentStation, University 150-55. California 1887-1889, CivilCode, sec. 1422 et. seq. of Nebraska, vol. 7, no. 41 (Febr. 4, 1895), 157; Relief 69 FirstBiennial Reportof theNebraskaStateBoard 82 Colorado Constitution, art. XVI, sec. 6 (1876). Commission Report1895, RG33, 9l. of Irrigation, 258-78. 83 Coffinv. LeftHand Ditch Company, 6 Colo. 443 55 NorthPlatte Telegraph, Dec. 23, 1893, l. 70 J.W.Milliman, "Water Lawand Private Decision­ (1882). 56 OmahaDaily Bee,Mar.21, 1894,2. Making: A Critique,"Journal of Law and Economics 84 Revised Statutes of Wyoming 1899,Ch. 9-14. 2 (October 1959): 47. 57 Lawrence B.Lee, "WilliamEllsworthSmythe 85 Clark v. ArapahoeIrrigation and Improvement and the Irrigation Movement: A Reconsideration," 71 James Willard Hurst,Law and the Conditionsof Co.,45 Neb. 798 (1895); Crawford Co. v. Hathaway, PacificHistorical Review41 (August 1972):304-5; Freedom (Madison: University of Wisconsin Press, 67 Neb. 325 (1903); Wasserburger v. Coffee, 180 Donald J. Pisani, ToReclaima Divided West: Water, 1956),6. Neb. 149(1966). Law, and Public Policy 1848-1902 (Albuquerque: 72 Morton Horwitz, TheTransformation of American University of New Mexico Press, 1986),265-66; Offi­ 86 Clark v. Allaman, 71 Kan. 206 (1905);Sturn v. Law, 1780-1860 (Cambridge: Harvard University Beck,6 Dak. 71 (1888), affirmed 133U.S. 541 (1890); cial Reportof the Third National Irrigation Congress Press, 1973),43. Held at Denver, Colorado, September 3rd to 8th, Mud Creek Irrigation, Agriculture,and Mfg. Co. v. 1894(Denver: Local Committee of the Arrange­ 73 Tylerv. Wilkinson,24 F.Cas. 472 (No. 14,312, Vivian, 74Tex. 170(1889). ments, 1894). D.R.1. 1827). 87 MosesLasky, "From PriorAppropriation to Eco­ 58 Gering Weekly Courier,Nov. 2, 1894, l. 74 MortonHorwitz, "TheTransformation in the nomic Distribution of Water by the State - Via Irri­ Conception of Property in American Law, 1780­ gation Administration, Part 2,"RockyMountain Law 59 Nebraska Senate Journal, 1895,64. 1860," University of ChicagoLaw Review40 (Winter Review 1 (June 1929): 269-70. 60 Ibid., 101-02. 1973):249. 88 Frank J. Trelease, "The Concept of Reasonable 61 Laws of Nebraska1895,201-10. 75 Caryv. Daniels,49 Mass.466 (1844). Beneficial Use in the Law of Surface Streams," Wyo­ ming Law Journal 12 (Fall 1957): 19. 62 H.R. 332 (1895), RG56, ser. 2, vol. 6, NSHS. 76 Evans v. Merriweather, 4 Ill.492 (1842). 89 Census of Agriculture 1900,870. 63 Nebraska HouseJournal, 1895, 790; Nebraska 17 Douglas R.Littlefield, "WaterRightsDuringthe Senate Journal 1895,857-58, 960-66. CaliforniaGold Rush:Conflicts Over Economic 90 Pisani, "Reclamation and Social Engineering," Points of View," Western Historical Quarterly14(Oc­ 46, 56-58, 63. 64 H.R. 443 (1895), RG56, ser. 2, vol. 36, NSHS. tober 1983): 417-19. 91 Donald Worster,Riversof Empire: Water, Aridity, 65 Nebraska StateJournal, Mar. 14, 1895,2. "Irwin v. Phillips,5 Cal. 140 (1855). and the Growth of theAmerican West(New York: 66 NebraskaHouseJournal, 1895, 1089-91; Ne­ Pantheon Books, 1985; Oxford UniversityPress, 79 Charles W. McCurdy, "Stephen J. Field and Pub­ braskaSenate Journal, 1895, 1027-28, 1167-68. lic Land LawDevelopment in California, 1850-1866: 1992);KarlWittfogel,OrientalDespotism(New Ha­ ven: Yale UniversityPress, 1957). 67 Nebraska HouseJournal, 1895, 1091-92. A Case Study of Judicial Resource Allocation in Nineteenth-CenturyAmerica,"Law and SocietyRe­ 92 Frederick Haynes Newell,Reporton Agriculture 58 Nebraska Irrigation Annual, 1896:A Steno­ graphic Reportof the Proceedings of the ThirdAn­ view 10 (Winter 1976):261-62; Civil Codeof Califor­ in the Western Part of the UnitedStates at the Elev­ nual Convention of the NebraskaIrrigation Associa­ nia 1872,tit. 8, sec. 141l. enth Census: 1890 (Washington: GPO, 1894).257; Census of Agriculture 1900,870-72. tion (Lincoln: A.G. Wolfenbarger, 1896), 151; Annual 80 Lux v. Haggin, 69 Cal. 255 (1886). Reportof the NebraskaStateBoard of Agriculturefor

243