1

Land, American Culture, and the Law

LAW B581A
Professor Gregory Hicks
8142
Question 8
The American west--beautiful, vast, and dry. Up until the 19th century, the American
people had not yet dared to undertake the quest of settling the west on a large scale, in many
ways because of the lack of water. However, as growing numbers of people traveled to the west,
the states needed guidelines and policies for water management for agriculture. The arid land of
the west necessitated a different approach to ownership in land, acting as not only a physical
barrier to settlement, but a mental obstacle as well; however, after settlement, the resulting
legislation and public policy for ownership largely failed in allocating a finite resource.
Simply getting people to settle the lands of the arid west battled ingrained societal myths
about western land. As Stegner observed in Blueprint for a Dryland Democracy, the notion of a
Great American Desert east of the Rockies is almost as old as the public domain. Due to maps
like one compiled by Major Long, showing vast areas of untillable land, by the mid[eighteen]thirties the Great American Desert was firmly established on the maps and in the
American mind (Stegner). This public perception proved an obstacle to settlement of that land,
for, as Pisani noted in Attitudes Toward Irrigation in Nineteenth-Century California, a pioneer
knew the process of dodging blizzards and fighting grasshoppers, but when it comes to
moistening the soil from a canal, a reservoir, or a well, he is puzzled and has grave doubts about
the possibility of successful results. To get people to settle these lands, myths had to be
rewritten. Men like William Gilpin who had the enduring faith that the desert was a myth
itself worked to sell the land to potential dryland farmers (Stegner). In California specifically, it
was necessary to create a new mythology concerning California agriculture, subsequently
claiming that fruits and vegetables grew faster and large in California than in older agricultural
regions (Attitudes Toward Irrigation).
However, once people accepted the rewritten myths, the land proved to be a barrier to
land ownership in and of itself. Pisani explained that many transplanted easterners found that
life in the new Eden was not as happy as land sharks and promoters made it out to be. The land
differed vastly from any landscape familiar to these pioneers, and ...more important than all the

variety which was hostile to a too-rigid traditional pattern was one overmastering unit, the unity
of drouth (Stegner). The lack of water in these lands was more fecund of social and economic
and institutional change in the West than all the accounts of all the Presidents and Congresses
from the Louisiana Purchase to the present (Stegner).
Because of the lack of water, irrigation was necessary to farm these lands, which proved
as another barrier to land ownership. Irrigation in California was considered an added expense
that put the state at a competitive disadvantage in the contest for new residents (Attitudes
Toward Irrigation). Further, many deemed irrigation unnecessary, and others claimed it actively
hurt the land and the people. One particularly powerful argument in the public mind was the link
between irrigation and disease. As the Pacific Rural Press published, there is no doubt but that
the irrigation of lands late in the season in this state is almost are to be followed by a general
prevalence of chills and fever and other bilous disease in the vicinity of such lands (Attitudes
Toward Irrigation).
Despite these mental and physical barriers to settlement, once settlement began the
prevailing mode of distributing water in arid land was governed by prior appropriation. Prior
appropriation was essentially the creed of first in time, first in right with regards to water.
Many legal scholars and contemporaneous judges accepted prior appropriation as the natural and
best-fitting way to delegate water in arid lands, a Colorado court remarking that principles of
the [common] law are undoubtedly of universal application. However, as Pisani argues in
Enterprise & Equity: a Critique of Western Water Law in the Nineteenth Century, aridity
is...half an answer to why prior appropriation was embraced with such ardor in so many parts of
the west.
The origins for reliance on prior appropriation in agriculture lie in the mining industry. In
the early days of settlement of the arid land, mining dominated the economy. As a California
court said, the legislature of our state in the wise exercise of its discretion has seen proper to
foster and protect the mining interest as paramount to all others (Enterprise & Equity). Prior
appropriation allowed water to be treated as private property, which the mining industry
demanded (Enterprise & Equity). However, prior appropriation slowly took the place of riparian
rights to water, which permitted only reasonable use of water rather than an absolute property
right, in the realm of agriculture. Although California courts warned repeatedly that prior
appropriation had not and could not replace the riparian doctrine, prior appropriation was

extended to agriculture by applying questionable precedents from mining cases (Enterprise &
Equity).
Although some courts at the time believed that riparianism was hopelessly inadequate
and prior appropriation was the only doctrine suited to an arid agriculture, reliance on prior
appropriation water policy led to the waste of water in arid land (Enterprise & Equity). Because
the only condition of prior appropriation was to put their diversion to a beneficial use, a water
law scholar observed that practically all of the farmers, miners, manufacturers, and power
companies, and cities of the West met this test when they took the water, since each had a
practical wealth producing use in mind (Enterprise & Equity). Truly almost any use of the water
fell underneath the blanket of prior appropriation, which led to farmers often using far more
water than needed because beneficial use did not mean either reasonable or economical use
(Enterprise & Equity). Indeed, most farmers assumed more was better, and found more
incentives to waste water than to save it (Enterprise & Equity). As a Nevada court observed,
the rule of prior appropriation here advocated would authorize the first person who might
choose to make use of or divert a stream to use or even waste the whole. A US Senate
Committee found similarly, remarking, the present system of water rights, which provide for
diversions first in time to have the most secure rights, provides little stimulus toward more
efficient use of water, and, in fact, may promote inefficient and wasteful use of water...
(Enterprise & Equity).
Prior appropriation policy led not only to waste, but facilitated monopolies of water by
large companies to the detriment of small farmers. As Stegner argued, the yeoman and his
version of the American way were having a hard time as settlement approached the arid zone
because the irrigation demanded before title could be obtained...was usually impossible for the
single farmer. As Horowitz stated, through appropriation ...the legal system had been reshaped
to the advantage of men of commerce and industry at the expense of farmers, workers,
consumers, and other less powerful groups within the society, and actively promoted a legal
redistribution of wealth against the weakest groups in the society. Viewed under the doctrine of
prior appropriation, water had become property detached from the land, and prior appropriation
offered businessmen a monopoly subsidy just as special franchises and characters did
(Enterprise & Equity). As Pisani concluded aptly, prior appropriation served grossly inefficient
as a tool to parcel out a scarce resource (Enterprise & Equity).

The Desert Land Act of 1877 formally restricted water use to bonafide prior
appropriation, and by doing so further exacerbated this problem. As Pisani observed,
private...companies.would be satisfied with nothing less than monopolistic control over the
regions water supply (Enterprise & Equity). The Kern County Land and Water company did
just this, piecing together an empire of 300,000 acres, establishing a monopoly simply because
it controlled the major water source of the region. The company would shut off the water of any
irrigator who complained, and sued over 100 farmers who refused to sell their water rights,
forcing many of them to give up their land (Enterprise & Equity). The passage of this law urged
Major Powell to appeal to the people, ...fix it in your constitution that no corporation--no body
of men--no capital can get possession and right of your waters...such a provision will prevent
your agricultural resources from falling into the hands of a few. Newell appealed similarly
against prior appropriation, saying, there must come a time when water must be apportioned
with justice to all...we cannot have a farmer getting more water than he is entitled to, because his
great-grandfather or somebody else happened to secure the water right two months ahead of
somebody else...water must ultimately be conserved in the most just manner for the general
welfare of all citizens (Enterprise & Equity).
This change, however, never came about. Water in arid land is still governed by the first
in time, first in right mentality. Originally growing out of use for mining, prior appropriation
has, for the most part, been accepted as the natural mode of regulating water in the arid west.
However, as states like California, Oregon, and soon, Washington, experience increasingly
intense droughts, the logic behind laws surrounding water use in arid land come to the forefront
of American thought once again.