The Struggle for Water in the West

MOUNT UNION in Wyoming might be called the Mother of Civilization in the western half continent where water is King. The melting snows of this peak in the Wind River Range, south of Yellowstone Park, give birth to three rivers which, in the course of their long journeys to the sea, control the industrial character of a region which will ultimately be the home of more people than any nation of Europe, and probably of twice as many people as now dwell within the United States. These rivers are the Missouri, the Columbia, and the Colorado. The first waters the eastern slope of the Rocky Mountains, including the Great Plains; the second, all of Idaho, much of Montana and the larger portions of Washington and Oregon, which constitute the Pacific Northwest; the third, the Intermountain Region of Wyoming, Utah, and Colorado, and of those parts of Arizona and California that make the extreme Southwest.

In striking contrast to the familiar conditions of the East, it may be said that upon the fate of these precious waters hangs the destiny of the many millions of people who shall live in vast districts now mostly vacant and undeveloped, but certain in the future to support a complex and far-reaching economic life. By no possibility can these future millions escape the dominating influence of these three great rivers and their systems of tributaries. It is not merely that the arid land cannot support human life without irrigation, and that the extent of this industry is, therefore, the necessary measure of settlement. The more important fact is that upon the manner of control under which irrigation shall do its work depends the industrial, social, and political character of the institutions to be erected upon this indispensable foundation. The people will be bond or free, tenants or proprietors; will coöperate in the orderly development and equitable distribution of the first necessity of their existence, or clash in the greedy struggle for its exclusive possession ; will prosper or languish, create high conditions of social life, or lapse into semi-barbarism, in sure response to the manner in which the water supply is owned and administered. In the future life of the immense region which constitutes the true field for American expansion and domestic colonization, questions of tariff and currency and foreign dominion are as nothing compared to the overshadowing importance of the struggle for water and the social and economic problems to which it is inseparably related.

The history of Eastern settlement and the experience of English-speaking men in other lands furnish little light for this problem of the West. It is a new question for our race and country, but its importance to the future of our civilization cannot be exaggerated, nor can it be longer ignored.

The explorers and pioneers of the Far West naturally had no appreciation of the problems now vexing those who followed in their footsteps. They came from a race and from communities that knew no need of moisture beyond that which fell from the clouds, and had no knowledge of irrigation except such as they might have absorbed from references to this ancient art in their Bibles. They were not statesmen or philosophers, but rude frontiersmen in quest of adventure, gold, or peltries. They could not foresee that water, of which there was more than enough for their meagre needs, would some time surpass in value all the stores of precious metals.

The first generation of homemakers among the plateaus and deserts were not much wiser than the explorers, the trappers, and the missionaries who had preceded them. Farms were few and far between, and the water required for their irrigation was cheaply diverted from the stream, and applied to the soil with a prodigality which took no account of the future. Under these circumstances it is not strange that, as the wilderness was carved into territories, and as the territories blossomed into states, these new communities applied the English common law to conditions it was never intended to fit. Had the Napoleonic or the Spanish code been chosen there would be a far different story to tell, for these were framed with an intelligent appreciation of the value of water for irrigation, but the Western pioneers carried to their new homes English traditions as well as English speech, and planted English law and custom at the foundation of their institutions. This beginning was fraught with peril and pregnant with far-reaching evil.

The English law, made for a country of excessive rainfall, governs the use of water from the standpoint of the riparian doctrine, — the doctrine that owners of land bordering the stream have a right to demand that the water shall continue to flow past their premises, undiminished in quantity and unimpaired in quality, as it has flowed from time immemorial. This law involves no hardship where the use of water is limited to domestic, power, and navigation purposes, but it has been justly denounced as “ an infamous law in an arid land.” There water is as gold. A stream that in the humid region would merely lend a pleasing touch to the landscape, and serve no practical purpose, has a commercial value of millions of dollars in the arid region. The man who “ owns ” or controls it by virtue of his ownership of riparian lands practically owns all the land within reach of the stream which might be made productive by the diversion of its waters. Through the power he derives from the English common law he may put an absolute veto upon the progress of the country, or, by permitting progress on terms of his own naming, may levy tribute upon his neighbors and unborn generations for himself and his heirs forever. At least, such would be the logical result of the riparian doctrine if fully applied in the arid states which inherited it from England with the other provisions of the common law. To a certain extent this odious doctrine has been mitigated in its practical effects by judicial decision and legislative enactment, but it still lives as an obstacle to progress, and will continue to do so until it shall be cut out of constitutions and statutes, root and branch. The treasure that has been wasted in lawsuits growing out of this doctrine, and the brood of evils to which it gave rise, would construct many canals, reclaim great areas, and make homes for thousands of people.

There are other evils which have grown up in the shadow of the English law, and are directly due to the fact that, framed in ignorance of the needs and uses of water for irrigation, it was adopted without forethought by the founders of Western communities. One of the worst of these evils is that of overappropriation. The law made no provision for the measurement of streams. As a result, the work of reclaiming arid lands was everywhere undertaken without exact knowledge as to the quantity of water in the streams, or as to the amount required for the proper irrigation of a given area or crop. As a consequence, nearly every Western stream was “appropriated” several times in excess of its contents. The utter recklessness of this proceeding may be better appreciated if we liken it to the case of a bank, where capital and deposits should be treated as common fund, to be drawn upon at will by all persons who needed money, and whose checks should be promptly certified by the proper officials. For it is not only true that the streams were over-appropriated. These excessive claims were generally confirmed by the courts, as if the water really existed and the claims were not largely a pleasing fiction. In the case of the bank, somebody’s checks would certainly go to protest. There would be lawsuits and perhaps broken heads as a natural outcome. That is precisely what happened in the West. There is endless litigation. The same issues are tried over and over again. When decrees are rendered, there is no power to enforce them save the tedious and costly process of another lawsuit, to be followed in time by another, and by still another. Lawyers have waxed prosperous, but capital has been discouraged, and settlers have lost both their crops and their tempers, and, at times, have appealed to the shotgun as a more sensible remedy than lawyers and courts. The root of the trouble lies in the original mistake of adopting the laws and customs of countries which had no irrigation problem of their own and therefore no need of diverting the water from its natural channels.

But the evils already mentioned do not begin to measure the wrong and loss which the settlers of the arid region suffered as a consequence of taking institutions, ready-made, from the experience of their forefathers. Upon this foundation a more monstrous evil has been builded by the greed and ignorance of man. This is the doctrine of the private ownership of water apart from its use in connection with land. Here was a region of fertile soil and unfailing sunshine, surrounded by all the raw materials of a varied economic life, but ruled by the fundamental fact that water must be artificially supplied to support human existence. If to such surroundings we admit the theory that water flowing from the melting snows and gathered in lake and stream is a private commodity, belonging to him who first appropriates it, regardless of the use for which he designs it, we have all the conditions for a hateful economic servitude. Next to bottling the air and sunshine, no monopoly of natural resources could be fraught with more possibilities of abuse than the attempt to make merchandise of water in an arid land. But this attempt was made upon a considerable scale in all the states and territories west of the Missouri River. It was supported by the laws of state and nation, and by the traditions of the dominant race. For a long time no man dared lift his voice against it, lest he be denounced and ostracized as an enemy of capital, of the country, of progress.

There was no deep design on anybody’s part when the system of private ownership of water was invented and put into practice in the West, — no premeditated effort to enslave or exploit those who should come to till the soil. By instinct and by training the AngloSaxon sees value in land, and looks upon water as merely an adjunct to agriculture. The abundance of land and the competition for immigrants, together with the generous laws governing the public domain, were felt to be sufficient safeguards for the settler. Such had proved to be the case in the eastern part of the United States. Nobody realized that radically different conditions had been encountered in the Far West.

The first canals were built by the joint labor of farmers to supply their own needs. But this was only feasible when the mountain streams could be turned out of their courses by simple dams and ditches. The point was soon reached where large capital was required to construct costly works and reclaim very large areas. The necessary capital responded with alacrity, even with enthusiasm, to the new opportunity. Then began the speculation in water which swept over the West a decade and more ago, bringing millions of acres “ under ditch ” as the result of the investment of tens of millions of dollars. This movement rapidly developed into an effort to create a monopoly of the water supply in various localities, with the object of obtaining possession of the more valuable lands, and of levying tribute on all the rest.

No speculation could possibly present a better appearance “ on paper ” than the proposition to get possession of a water course and reclaim a beautiful valley of fertile soil. The prospectus of such an enterprise shows that no man may make his home under the proposed canals except upon such terms as the company shall name. If the settler be not forestalled by the land-grabber, as is almost certain to be the case, but proceeds to file upon the land under his rights of citizenship, he has still to settle with the water lord. His property is worthless, and must ever remain so, until he has obtained water from the only source whence it can possibly be had, — a source which the thrifty promoter has already preëmpted. There is therefore nothing for the settler to do except to inquire the terms upon which the life-giving current will be turned upon his land and continued in perpetuity. These terms, as the prospectus used to explain, were, first, a cash payment of ten to twenty dollars per acre for a 舠 water right; ” second, a contract agreeing to an annual payment called “ water rent.” The promoter’s financial plan contemplated the sale of water rights in an amount sufficient more than to return the entire investment ; then, an annual income from water rents sufficient to pay dividends on large amounts of fictitious capital. There was no lack of water for stocks and bonds, even if the supply sometimes fell short for the land.

This attempt to fasten a water monopoly upon the budding civilization of the arid region is interesting, first of all, in its economic and political aspects. If successful, it would make millions of men in the future tenants rather than proprietors. It would create a system essentially feudal, since ownership of the water in an arid region is practically equivalent to ownership of the land. In this feudal system the man who owns the water is the great proprietor ; those who use the water and pay him tribute are the peasants. The political influences which might grow out of such a system, and their far-reaching effect upon the future, may be readily imagined. How well these dangers were anticipated by the people was luminously shown by the almost total failure to find settlers for lands covered by these private canals. However pleased with the fertility of soil and the charm of climate, they withheld their necks from the yoke of water bondage with practical unanimity.

The essence of the attempted monopoly was the water right, which stood for the arrogant claim of ownership in that most vital of natural elements to an arid land. The man who purchased a water right purchased no actual water, but only the privilege of “ renting ” water. He thereby acknowledged that he had no natural right in melting snows and running brooks, though he could not possibly hope to make a living from the soil he owned without irrigation. The fallacy of the water right theory readily dawned upon promoters and investors when the failure of colonization became apparent and was swiftly followed by the failure of the expected dividends. It was not until these facts were reasonably well established that the system was overtaken by the strong disapproval of courts and legislatures. A notable decision in the United States Circuit Court at Los Angeles flatly declared that there could be no such thing as private ownership in the natural stream, — that the only right was that which arose from beneficial use. About the same time the Idaho legislature passed a law forbidding canal companies to demand the purchase of a water right as a prerequisite to furnishing water to owners of land under their works. After much legal and social friction, it is now generally understood that irrigation works carrying water in excess of that required for the lands of their owners are to be treated as common carriers, and made to furnish water to all lands within reach of their canals, regardless of the former demand for the purchase of water rights. This statement applies only to enterprises which undertook to sell water apart from the land, and not to coöperative and district organizations that aimed only to water the lands of those directly interested.

The land laws of the United States, like the water laws, are ill suited to the needs of the arid region. The Homestead law served a useful purpose in the settlement of the country east of the Missouri River. It is gratefully associated in the public mind with the most notable achievements of domestic colonization. But it does not fit the conditions existing in the vast remainder of our public domain. On the contrary, it proved an invitation to disaster to thousands of settlers who were led to take up lands where they could not possibly prosper without irrigation facilities, for which this law makes no provision. The Desert Land law is scarcely better adapted to the purpose. It has been used largely as a means of land-grabbing by those who wished to forestall the settler and speculate upon his necessities.

No other part of the United States — perhaps no other part of the world — is so favored as western America in its natural endowments. In the fertility of its soil, the extent and value of its timber, mines, water power, and native pastures, and in the healthfulness and charm of its climate, it is a region of extraordinary resources and surpassing promise. But this fair empire is bound hand and foot by a system of illogical and antiquated laws and customs, born of the needs of other days and other countries, and wholly unsuited to this place and time. These unhappy conditions have not only disturbed the peace of communities, and the relations of capital and labor, but involved states and nations in discord and bad feeling. Colorado takes the waters from the Arkansas needed for canals constructed much earlier in Kansas. New Mexico develops her resources at the expense of the sister republic south of the Rio Grande, drying up canals which have supported Mexican communities for centuries. It is announced that Kansas will bring suit against Colorado to determine its rights in the Arkansas River, and to attempt to protect the large investments made in irrigation before the citizens of the upper state absorbed practically the entire flow of the stream at the season of low water. This suit marks the acute stage of the controversy over interstate rights, and the outcome will be awaited with interest throughout the West. It involves one of the most delicate questions which has yet arisen with reference to irrigation in this country, and may call for the assertion of the national authority as to the division of streams rising in one state and flowing through others which have need to make the utmost use of their natural water supply.

The present consequences of these conditions are as nothing compared to their future effects as the settlement of the country progresses. What has been merely misfortune will become disaster unless the evil tendencies are soon corrected. The pitiable chaos of laws and customs should be replaced by a wellconsidered code of national and state regulations, framed in the light of the best experience, and adapted alike to the physical foundation of the arid region and to the economic needs of the time. It is a work of construction as well as of reform. There are abuses to abolish, but there is also a demand for a broad and enduring foundation of law and custom on which the future shall rear a stately edifice of industry and society. We have learned some valuable lessons in the past, not only in our own but in foreign countries, and the time has come when we can apply them to the rising needs of the arid region.

The great lesson that has been learned is that water in an arid land cannot be treated as private property, subject to barter, like land and livestock. It is a natural element, like sunshine and air. Every human being is entitled to receive as much of it as he can apply to a beneficial use. No person may hold it out of use for speculation to exploit the necessities of others or to levy tribute upon his fellow men. The community has a legitimate interest in every drop of water entering at the head gate or escaping at the end of the canal. No man may use the precious element with wasteful extravagance. Wherever there is more land than water, it is true public policy to have the water so conserved and distributed as to reclaim the utmost number of acres, create the utmost number of homes, and sustain the utmost number of families. The canal which conveys the water from stream or reservoir is a public utility, subject to public supervision and control. It can never be privately owned save when, because of its limitations or the character of its organization, it can serve no lands except those of its owners. Even then it is subject to the jealous and watchful care of the public authorities. But in the vast majority of instances, and over the larger portion of the arid region, costly works will be required, and these can only be supplied by some form of public enterprise. The dividends upon the investments must be looked for, not in the strong boxes of security holders, but in the increase of national wealth, in social progress, and in economic gains. The natural tendencies of irrigation are strongly in the direction of the socialistic ideal. The records of even the most primitive peoples who have lived upon irrigated lands bear evidence of a high order of social organization. The rudest and poorest pioneers of the Far West were drawn together in the same way by the necessities of irrigation. Our future progress must inevitably be along these lines.

To these conclusions every thoughtful student of irrigation development has come at last, though often with reluctance. The public sentiment of the West has wrought out the same conclusions slowly, painfully, through bitter experience, but not less surely on that account. In no other land — not in Spain nor in France, in Egypt nor in India — has any one ever dared to make a monopoly of the water required for irrigation. Even the Pueblo Indians, tilling the soil and using the waters which their forbears tilled and used in immemorial ages, knew better than to attempt any such gross perversion of man’s natural rights. Nor would the Anglo-Saxon have attempted it if he had not entirely misunderstood the new problems with which he was dealing.

Irrigation has not failed when undertaken in a coöperative way, except where ceaseless litigation over water appropriations has involved communities in financial loss and social strife. There are great numbers of coöperative canals in all the Western states, built and operated by the farmers themselves. They were treated practically as public utilities and have served their purpose admirably, though the English tradition of water ownership, under which they labored, has been a heavy burden to them, as to others. The California law of 1887, commonly known as the Wright law, attempted to overthrow the riparian doctrine, and other evils arising from the common law, by providing for the formation of districts and the issue of bonds after the manner of municipalities. Lack of proper public supervision defeated this well-meant effort. Small communities of farmers proceeded to organize districts without sufficient knowledge of the water supply or of the cost of their undertakings. In many cases they were betrayed by promoters and contractors, but more often by their own enthusiasm. If the state had provided a skilled engineer to examine all projects, and submitted the financial proposition to competent authorities before authorizing them to be begun, many of the districts would have succeeded. As it is, they must pass through a process of reorganization before they can prosper, but the disappointment encountered cannot fairly be charged to the failure of public enterprise as a principle.

It is pleasant now to turn from the failures and disappointments which marked the earlier stages of the struggle for water in the arid West to the encouraging signs which are seen in many directions, and to some very important achievements in the line of reform. Wyoming occupies the place of leadership, and has marked out the way of future progress. When that territory became a state it provided for the most enlightened code of irrigation laws which has ever been devised in this country, and erected an administrative system capable of carrying them into effect. These laws began at the right place by providing for the careful measurement of streams and the gathering of exact information as the basis of future appropriations. From that time henceforth it was impossible for rival claimants to demand ten times as much water as flowed at a given place. The state put itself in a position to know that the water could be had before granting it away. But the law had an eye for what had been done in the past as well as for what might be done in the future. It provided for a careful readjudication of all existing claims. Users were compelled to show how much water they were actually applying to the soil in a beneficial way, and informed that such beneficial use was the measure of their right, no matter how much more water they might have claimed originally. No one was permitted to begin the building of new works until the plans had been definitely approved by the state. These precautions were intended to prevent the waste of water, to the end that the largest possible area should be reclaimed, and that water rights should be based on an absolutely stable foundation.

The Wyoming law provides a complete system of administration with a state engineer at its head. The state is apportioned into several large divisions on the basis of watersheds, and these are divided into many districts. A commissioner presides over each division, and a superintendent over each small local district. These officials and their assistants are clothed with police powers, and it is a part of their duty to attend personally to the head gates of all the canals, and be responsible for the amount of water which is permitted to flow into them. This method of administration completes the good work which was begun when the appropriations were reduced to the basis of actual beneficial use, and recorded in such a manner that no dispute could arise concerning them in the future. With these laws and this method of enforcing them, the lawyer is practically eliminated from the irrigation industry of Wyoming. The money which citizens of neighboring states spend in litigation, Wyoming people apply to the improvement of their canals or homes and the increase of their herds. Wyoming has also done much to establish the principle that land and water should be united in ownership, so that the former cannot be sold apart from the latter. Under this principle there will be an equal number of water users and landowners, and no man or interest can make a monopoly of the water supply without also owning all the land.

The influence of Wyoming upon the public thought of the West has been widespread, and is rapidly extending. Nebraska has adopted bodily the laws of its neighbor, and its irrigation industry is prospering mightily in consequence. Several other states have adopted these laws in part. Colorado, which takes more millions from its soil than from its mines, has given much attention to its irrigation laws, but has not been so fortunate as Wyoming because of the consequences of its earlier laws and customs. California is just now entering in earnest upon the struggle for the reform of laws which have caused her people untold suffering, and brought her irrigation development to a standstill. This greatest of Western states has been slower than any other to fight the evils described in this article. Its conservatism is due in part to the influence of the mining industry, and in part to the popular temperament, which differs somewhat from that of smaller and less wealthy states. But the battle is on at last, and there can be no possible doubt of the result in the end.

The National Irrigation Congress has done much to arouse public sentiment and educate public opinion to the need of better laws, national as well as state. Its most difficult task is to show the American people that there are distinctly two spheres of action. One of these the Western states must manage for themselves. They must divest their institutions of old laws and customs, and make them over to fit their local conditions. They must grapple with the problem of reclaiming their lands and making them ready for the settlers of the future. But only the nation can legislate as to the forests, the grazing lands, and the many important streams which flow across state and national boundaries. It may be, too, that the nation must assist in building great reservoirs on the head waters of the larger rivers. Already the nation is doing a most valuable work in measuring streams and carrying on scientific studies to demonstrate the amount of water required for the irrigation of different crops. On the whole, the situation is very encouraging. The world learns through suffering. The West has suffered much from the illogical water and land laws which it inherited or thoughtlessly adopted. The East suffers for an outlet for its surplus population. Progress will certainly come as a result.

Assuming that the long struggle for water shall finally result in wise laws, and the beautiful valleys of the West be thus opened to settlement, what then ? We shall have, in time, a population of one hundred millions dwelling in a land of invigorating climate, and surrounded by resources of marvelous richness and variety. There will be no one-sided industrial life, because nature has so placed these resources that the mine and factory, the lumber camp and the farm, must flourish together. The one will always consume what the other produces, and this will make each, to a large extent, independent of outside markets. But the economic foundation will be agriculture, for “ the farmer is the only necessary man.” Under what conditions will this farmer of the new land and the new time live and flourish ? In answering this question we shall find the key of the civilization of the future West.

No view of irrigation can be appreciative which regards it as merely an adjunct to agriculture. It is a social and economic factor in a much larger way. It not only makes a civilization in the midst of desolate wastes : it shapes and colors that civilization after its own peculiar design. It forbids land monopoly, because only the small farm pays when the land must be artificially watered. By the same token it makes near neighbors and high social conditions. It discourages servile labor by developing a class of small landed proprietors who work for themselves and need little help beyond that which their own families supply. Here we have the elements of a new society, one where the independence which goes with ownership of the soil, and the social advantages inseparable from neighborhood association, will be happily combined. We can expect no millionaires to grow from such surroundings, but neither should there be any paupers.

There is another influence peculiar to irrigation, and one which may be expected to make itself felt powerfully in the larger economic life of the arid region hereafter. Indeed, this influence is already plainly apparent in the communities which have grown up in various Western valleys, and in the broader tendencies of social growth which we see on every hand. This is the influence which makes for coöperation. Irrigation is not and can never be an individual enterprise. A single settler cannot turn a river to water his own patch of land, nor can he distribute the waters flowing through a system of canals. Before the first potato or the first rosebush can be coaxed from the rich but arid soil there is a demand for the association and organization of labor. The result is that coöperation precedes irrigation. It also accompanies and follows irrigation, and is speedily woven into the entire industrial and social fabric of the community. In localities which have been longest established this principle has extended itself to stores, factories, and banks. The saved capital of industry has been invested in coöperative enterprises to make these communities independent of outside production. There can be no doubt that this will be done upon a much larger scale in the future, and that the industrial possibilities of the arid region — now sleeping in idle water powers, virgin forests, and half-stocked pastures — will be developed in harmony with this principle. These things will not come suddenly to pass, but they will come because the conditions and surroundings of the time and place will strongly favor, if not actually compel, the result. Such are the hopes of Arid America. What other part of the world offers a fairer prospect to mankind ?

William E. Smythe.