In the western United States, there are many different forms of real property rights. They can be fee simple title rights, homestead rights, land-surface-only rights, mineral rights, timber harvesting rights, surface water rights, groundwater rights, grazing rights, and rights of way for ditches and for access. Most of these unique property rights were granted or confirmed to the settlers of the West by the U.S. Congress in the second half of the 1800s. And the reason Congress granted or confirmed these rights was to encourage the settlement and expansion of the western unappropriated public lands in order to place these lands into production and create new economic growth. Since many of these property rights were established after 1862 and we have several generations of new owners who have inherited or purchased these unique property rights, advising clients about these rights can be challenging. This article addresses the issue of how to advise senior citizens about unique property rights that are not encountered every day by the general real property practitioner.
Most often, the owners of these unique property rights are seniors; most are over 70 years old and many are in their 80s or 90s. These senior property right owners have distinct memories of what their grandparents and parents told them about their property rights, and they have a unique view of the history of their property rights that must be understood in order to advise them in an era in which many government agency personnel have forgotten about these rights and may no longer believe such property rights exist. Many times, the senior citizens’ memories are based on local custom and practices that have been adopted into local laws of the territories and then the states. It is important that the legal advisor working with these seniors understand both the historical context in which the rights arose and the actual facts under which the property rights were granted or confirmed. Only then can the advisor provide competent guidance to these seniors to enable them to understand the scope and extent of their unique property rights and to help protect and secure those rights.
In order to provide some background and context, it is necessary to provide a brief summary of the major federal legislation that either granted or confirmed to the settlers the property rights discussed in this article. The public land laws of the United States have a long history, beginning with the Land Ordinances of 1784, 1785, and 1787. These infant land statutes provided for the survey and sale of public lands but set no price per acre. The main emphasis was on surveying, and surveyors were appointed directly by Congress. Companies, such as the Ohio Company, were established to conduct the surveys and the sales. There was much corruption and many defaults. Land speculators controlled vast tracts of land and never paid the government for it. Settlers, anxious to inhabit these lands, began to move to them and squat there without the benefit of sales or surveys. Finally, in 1807, Congress banned all settlement of these lands, but the ban was not enforced.
The Preemption Laws
Preemption laws were ultimately passed in 1830 and 1841. These laws recognized the reality of what the settlers had already accomplished: they had entered upon the public domain and placed the unoccupied land into production. The preemption laws allowed for the sale of land to the settlers who had already occupied the land, and for the princely sum of $1.25 per acre, the settlers could now buy the land. Men who were the heads of families, or widows, who were citizens or who declared their intention to become citizens, and who owned no more than 320 acres already, could settle on an additional 160 acres and purchase such land at a later date. As one senator at the time put it, the preemption laws were merely “declaratory of the custom of the common law of the settlers.” Cong. Globe, 26th Cong., 2d Sess. app. at 70 (1841). The theme of custom and common law plays a significant part in the land laws passed by Congress in subsequent years and also forms an important component of the lessons to be learned before advising seniors on these unique property rights.
The Homestead Act of 1862
The expansion of the West, the need for lands to alleviate the overcrowded eastern cities, and the demand for lands for the growing population of immigrants were forces that grew in the 1850s to allow for the grant of lands to more settlers. Horace Greeley’s “Go West, young man” and his call to give land to the brave souls who dared to occupy areas of the country that were unsettled and even unexplored were echoed in the halls of Congress for over 13 years before Congress was able to act. Although the House of Representatives passed several bills, forces in the Senate, those fearful of emigration and southern senators who were afraid the new territories would be occupied by emigrants who would not allow slavery, refused to pass the Homestead Act. After the election of Abraham Lincoln and the reduction in southern votes, the bill passed in May 1862. The Homestead Act of 1862 (43 U.S.C. §§ 161–284 (repealed 1976)) is an example of how Congress encouraged settlers to enter upon what was then the public domain and to occupy 160 acres of land and to place it into production. All the settler had to do was pay a small fee when filing the claim and then live on the land for five years, and he or she would receive a patent.
But in the West, 160 acres could scarcely support a family. The settlers were obliged to allow their meager herds to graze on adjacent unoccupied lands. There are areas of the West where it requires over 500 acres of land to support one cow with forage and water. And in the arid West, the water was not always where the homestead was established. Settlers were forced to divert water from streams away from the homestead and dig ditches to carry the water to where it could irrigate crops. Water sources also had to be developed away from the homestead in order to provide sustenance to livestock.
The Mining Act of 1866
Miners in the West had already encountered these same difficulties when they attempted to separate gold and silver from the earth. The miners needed huge quantities of water to run their sluices and to allow the heavier precious metals to fall out. The water seemed to never be where the mining claim was, or water had to be taken from far above the claim in order to achieve enough head pressure at the sluice to separate the gold and silver. The custom arose to not only stake out a mining claim but also to claim water rights to support the mine. And water was needed just to support life in the mining camp. Water for livestock, for drinking, and for washing was needed, and usually it had to come from sources away from the mines. Many disputes would arise about who owned the right to use certain water sources, and something had to be done to regulate the claims.
The western territories and states thus began to develop customs and ultimately local laws to recognize the need to procure water and to own water rights that originated on lands not actually occupied by the miners and the settlers. Land laws in 1785 had reserved certain mineral rights to the federal government, but there was little regulation of mineral lands in the 1800s until 1866. The discovery of gold in California in 1848 and the subsequent exploration of gold on public domain lands necessitated the expansion of the “local custom and laws” the miners had already established. On July 26, 1866, Congress passed the first comprehensive law dealing with mineral lands.
The Mining Act of 1866 (43 U.S.C. § 661) was a milestone in how mineral lands would be regulated. But for our purposes, the most salient feature of the Mining Act was its incorporation of provisions related to the use of water and ditch rights of way on the public domain. Congress recognized that custom and practices had arisen that allowed for the orderly appropriation of water and its beneficial use to support the efforts of settlers and miners. Mining districts had been established to register claims, and “recorders” were appointed to register those claims. Surveys were also established for the registration of claims for the use of water. At first, claims were established by posting written notices at the site of the appropriation. Soon local custom and laws allowed for the “filing” of water rights claims. These claims included maps or descriptions of the source of the water, as well as a map or description of the place of use for the water and any ditches that conveyed the water to the place of use. Many local governments established “water books” in which water rights claims were registered separately from land or mining claims. A system was being established to allow for the proof of the priority of claims to water rights.
Thus was born the appropriative system of water rights based on the concept of “first in time, first in right.” The Mining Act of 1866 “confirmed” to the settlers the rights to water and to access of the public range. Most of the water rights and ditch rights of way established by the settlers were created long before any state or territory had passed legislation allowing the appropriation of water under state law. The settlers who established water rights before these water rights statutes were passed were recognized as having “pre-statutory” water rights, and these rights were in most cases given special status and special protections from being diminished in the future. These special protections grow out of the “local laws and customs” that were recognized by the states and territories, and are as applicable to these water rights today as they were in the late 1800s when the rights were first established and confirmed.
The Grazing Land Laws
With the opening of the public lands to homesteading, mining, and livestock grazing, the local settlers were confronted with problems of protecting their water rights from encroachment. Most especially, the public lands, then open range, were being invaded by migrating bands of sheep. These early sheepherders, sometimes herding tens of thousands of sheep, moved from place to place as they searched for new sources of forage and water. Inevitably there was a clash between the migrant sheepherders and the cattlemen who had established homesteads and then appropriated the water rights on the adjacent public lands.
As important, the cattlemen depended on the grasses on that public land to sustain their herds. Now the sheepherders were denuding the land of forage. Unlike cows, a sheep will devour grass right down to the root, thus destroying the capability of the grass to reestablish itself. But a cow, because of the physical characteristics of its mouth, can only eat the grass to within two inches of the ground. Thus, the cow-eaten grass has a much better chance of regrowing because it still has its root structure left intact.
At first, the cattlemen attempted to fence off the public range. But the Department of the Interior declared these fences to be illegal and, in 1885, Congress passed a law making fencing the public domain a punishable offense. After five years, most of the fences were gone, but the proliferation of free-ranging cattle and sheep took its toll, and the open range became overgrazed.
President Theodore Roosevelt proposed to lease areas of the public range in order to control the number of livestock and to better manage the range. However, in 1897, with the establishment of the Forest Service, the federal government began managing livestock within the fast growing confines of the National Forest System. The Forest Service instituted a permit system for the use of the national forests for grazing, which was specifically authorized by Congress. In fact, it was demonstrated that managed cattle grazing in the national forests was beneficial for the forest because the cows removed the undergrowth that was prone to catching fire. Overgrazing could cause erosion, but the fires denuded the forests and caused more erosion than could any herd of cattle.
In 1934, Congress decided to establish a grazing management system for all of the public lands, not just the national forests. To that end, it passed into law the Taylor Grazing Act and created the federal Grazing Service. 43 U.S.C. §§ 315–315r. Grazing districts would be established, and livestock owners who had historically used the range and had water rights would be given priority for the use of their historic grazing lands. Other livestock owners who lived near the grazing areas but who had no historic connection could also apply for use, as could others who had no lands near the grazing areas. The reality was that only the livestock owners who had historically used the grazing areas and had homesteads adjacent to the range and those who claimed water rights in the public domain were given permission to graze the public lands.
The idea embedded in the Taylor Grazing Act was that the federal government would manage the grazing lands with the direct input and assistance of the livestock owners themselves. After the Grazing Service had adjudicated the boundaries of the grazing areas that were under the control of the livestock owners, then the federal government could begin disposing of the lands and turn control over to the livestock owners. However, that never happened.
The Federal Land Policy Management Act of 1976
Despite promises that the Taylor Grazing Act was passed to protect the livestock owners who had historical connections with grazing areas and that the Grazing Service was only there to determine the boundaries of the grazing areas, the federal government altered its land use policies in 1976 with the passage of the Federal Land Policy Management Act (FLPMA). 43 U.S.C. §§ 1701–84. FLPMA repealed many of the land laws that had been previously the law of the land, including the Mining Act of 1866 provisions for the appropriation of water rights and establishment of rights of way in the public domain.
FLPMA set up a unified system for the management of grazing lands and altered the Taylor Grazing Act’s goal of disposition of grazing lands to one of permanent management by the federal agencies. Id. §§ 1751–53. The Forest Service, then in the Department of Agriculture, and the Grazing Service, then combined with the General Land Office to become the Bureau of Land Management (BLM), were assigned the responsibility to manage, restore, and sustain the nation’s grazing lands. Both the Forest Service and the BLM have promulgated extensive sets of grazing regulations and administer literally millions of acres of federal lands that are no longer characterized as “public lands,” as they were historically known, because these lands can no longer be entered upon and settled by the public. They are reserved, withdrawn, acquired, or protected lands under various modern land laws established for their protection.
Defending Unique Property Rights for Seniors
With the complexity of the history of these land laws and the existence of over 25,000 families who are permittees of federal agencies that administer grazing rights on federal lands, providing advice to these families is a challenge. Indeed, my experience is that most of these families are led by seniors who not only understand the local customs and laws that have governed their property rights for over 100 years but also have a historical understanding from their parents and grandparents of what the role of the federal government in the management of their water rights, ditch rights of way, and grazing rights was intended to be. Since the linchpin for the administration of these unique property rights are the local customs and laws, it requires state-by-state and territory-by-territory understanding of how those local customs and laws developed.
The Importance of Appurtenant Rights
Understanding the scope and extent of these families’ property rights is the first step in comprehending the value and importance of those rights. For example, a senior citizen cattle rancher who has inherited or purchased a homestead that is the headquarters for his or her ranch must also have an understanding of the property rights that are appurtenant to the ranch. In the West, water rights and ditch rights of way are appurtenances to real property. In other words, they run with the land and need not be separately named in a deed or conveyance unless they are being severed. Many times, the rancher’s deed will merely describe the land being transferred in fee simple absolute and then make reference to “along with any and all appurtenances.” The significance of this language cannot be overstated. Your senior client will have an understanding that the deed carries with it certain rights in the adjoining grazing lands that are not readily obvious from the deed. You, as the advisor, need to listen carefully to what your client is telling you about the history of the ranch before leaping to conclusions concerning the scope and extent of the property rights.
Sometimes, these property rights are not exclusive. You will need to ask whether the rancher client knows of any cattle driveways in or adjacent to the ranch where ditch rights of way or water sources may be located. Your client may not be the only rancher who has rights to these ditches or sources of water. However, there may be a priority right to the water. For example, let us say that your client’s predecessor first entered the range in 1866 and began driving cattle along a certain route to adjoining grazing lands and has historically traveled that rout ever since. And let us also say that another rancher also traveled that same route and used that same water source but did not begin doing so until 1870. As long as there is sufficient water at the source to satisfy both herds of cattle, there is no issue and the two herds can share the water source. However, if a drought persists and the amount of water at the source is diminished so that only one rancher’s herd may be watered, then the rancher who established the right in 1866 has the first priority to the exclusion of the other rancher who initiated his or her right in 1870.
It is important for you as the attorney to explore both the family’s and predecessors’ histories on the range in order for you to advise your senior clients of their rights. Establishing these rights and proving they exist and have continued to exist is a very important component of the work to be done representing these unique interests. I once had a case where my client, an elderly gentleman, was being cross-examined about whether he or his family had ever defended the water rights he was claiming. The cross-examiner probably meant whether the rancher or his family had ever gone to the territorial court and either prosecuted or defended a lawsuit, but he had asked an open-ended question. My client slowly and deliberately said: “No, I don’t think so, except for the shooting.” He then went on to describe how his grandfather had encountered two trespassers watering their cattle at one of his grandfather’s springs, a spring that was part of the water rights the client was claiming. He went on to say how his grandfather had challenged the two men and got into an altercation that involved gunplay. Grandpa killed one varmint and wounded the other. My client, with a bit of understatement, said: “I guess you could call that defending your water rights.”
Chain of Title
Usually proof of the existence of water rights is not so dramatic and may entail the use of territorial and county records. The key evidence to be used in these cases is the chain of title. Your only hope is that the county courthouse did not burn down after your client’s predecessor established his or her rights. Spending time at the county courthouse can yield a wealth of information about your client’s rights. Proving that the client’s predecessor owned land in the vicinity of the grazing area and the water rights and that the rancher owned livestock is key. You will need to ask your client about all of the predecessors he or she can remember who ran livestock on the same range and who may have transferred their grazing rights and water rights to the client. Starting with the chain of title, you will need to search the grantor-grantee index to find the parcel or parcels that were owned. Sometimes these lands were consolidated into one larger ranch; sometimes they were returned to the federal government but the grazing rights and the water rights were transferred with the ranching operation. You must trace the land transfers back to the original federal Homestead Law patents.
Discovering the names of your clients’ ancestors and predecessors is extremely important. You must ask your clients to search the family records and documents to discover if they can establish a link between their property rights and their predecessors. In one case, my client was able to retrieve from the files of the Forest Service all of the grazing cards from the inception of the National Forest. There was even a list of names of all of the original permittees that was compiled by the Superintendent of the Forest in 1908, the first year permits were issued. The names included the number of cattle that were being grazed and a location. During the trial to establish whether the client owned water rights and access rights, I had the client testify about this list of names. She not only knew many of the names on the list, she also knew their families and where they had ranched and watered their cattle. Many on the list were relatives of her and her husband. The testimony was not only powerful, it was convincing. The remarkable thing was that my ranching client did it all from memory, and she was 75 years old at the time. Never underestimate the capabilities of your senior clients and their ability to remember critical facts that are important to your case.
National Archives and Homestead Act Files
An important source of information related to these case can be discovered at the National Archives. There are repositories of the old federal agency records throughout the country, but most of the important records are kept in Suitland, Maryland, just outside of Washington, D.C. In the course of inquiring from your clients the names of their predecessors and the locations of their grazing, it is also important to gain knowledge related to homesteads. Many times, your senior clients will have knowledge of the existence of old homesteads in the area where they graze or have water rights. You will need to capture these names and locations for your search of National Archives records.
Homestead files contain a wealth of information about the activities of your client’s predecessors. When you request a homestead file, make sure you ask for copies of the original homestead entry application, the prove-up declaration, the witnesses’ declarations, and the survey that would have been conducted by the General Land Office to verify the existence and duration of the homestead activity. The homestead entry application will contain information about the homesteader and the exact location of the homestead. In order for the entryman to prove up the homestead, the homesteader must prove that he or she has worked the land for a period of three years and occupied the land for that period of time. Included in the file, if it was patented, will be an affidavit from the homesteader regarding the length of time spent on the land and the extent of the work that has been done. Also included will be at least two affidavits of witnesses regarding the homesteader’s time and activities on the land. Finally, there will be a site survey from an agent of the General Land Office. This survey normally describes the boundaries of the land, the improvements, the livestock present, and confirms what is in the homesteader’s affidavit.
Tax Assessor Records
Another excellent source of information can be the local tax assessor’s records. Today, tax assessors value and assess real property—mainly land. However, in the 1800s and into the early 1900s, tax assessors actually valued and taxed personal property, including horses, cattle, buggies, furniture, and other improvements on the land, but not the land itself. You need to ask your senior client about the homesteaders and the activities in which they were engaged. Using that information, you can access the old tax records and discover whether the predecessors had personal property that would be indicia of a livestock operation.
Finally, there is nothing more compelling than the testimony of an elderly rancher and his cowhands. In one case I was working on, we asked the elderly client if there were any written records about the use of the range and the water. He remembered being told about an old quiet title action that was filed by one of his predecessors. Sure enough, not only was there a judgment quieting title in the predecessor, there were transcripts of the proceedings. In the transcripts was testimony of one of the old cowhands who had worked the range for 50 or more years and could remember exactly where the cattle had grazed and which water holes, streams, and springs had been used. Again, very compelling evidence and all based on the memory of the elderly rancher.
We have explored some of the unique property rights that have been created and confirmed in the western United States. We have also explored some of the issues that arise in defending these rights and how to go about accomplishing this effort. However, the main emphasis of this article is on senior clients who have historical knowledge of their property rights and who can help lead the attorney to valuable evidence to help support those rights. The legal advisor must trust his or her elderly clients’ knowledge of the area and history, and follow the leads provided based on the clients’ understanding of local custom and laws that will support their claims.