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Land Policies of the United States as Applied to Utah to 1910

Utah Historical Quarterly

1952, Vol. XX, No. 3

LAND POLICIES OF THE UNITED STATES AS APPLIED TO UTAH TO 1910

BY GEORGE W. ROLLINS

lTHE public land policies of the United States government have developed slowly and often inadequately to meet the needs of an expanding people. In the main, the policy has been one of expediency, trying to make an outworn system work under changed conditions. When changes have been made they have often come about tardily and have been palliatives instead of cures for the real ills of the system. This has been especially true of the unrealistic attitude of the land laws when applied to the states and territories west of the one hundredth meridian. It will be the purpose of this article to discuss and evaluate the land policies of the United States as applied specifically to one of these territories, Utah. This territory has been selected because it represents a rather distinct type of development. In order to arrive at an understanding of the land policies as applied to Utah it will first be necessary to devote some attention to these policies in general as they have developed from the time of the formation of the Union.

In the early years of the republic, the emphasis seemed to be placed on the acquisition of revenue. The Land Act of 1796 provided for the sale of land at a minimum price of two dollars per acre in plots up to 640 acres. This act failed because the price was too high and large plots led to speculation. The law of 1800 and subsequent amendments reduced the size of the tracts to eighty acres but maintained the minimum price and offered liberal credit terms. The credit features of the 1800 act led to a breakdown of the law and in 1820 it was superseded by a new act which abolished the deferred payments feature and reduced the price of land to $1.25 per acre in eighty-acre tracts. It was now possible for a farmer to acquire a farm on which he could make a living for one hundred dollars. 

Still the frontiersman was not satisfied. The impatient settlers often preceded the surveyor and merely squatted on a piece of land. If a latecomer coveted the same tract, he might secure it by outbidding the squatter at the public auction after the survey. If the new man were merely a speculator who owned countless other plots of land, the original settler was even more disturbed. Strongarm methods indulged in by claim associations might succeed in intimidating rival bidders, but often required a compact and harmonious body of settlers to be effective. The only safe recourse would be a modification of the land laws to protect the right of a man to squat on a piece of land outside of the survey limit and be able to purchase it at the minimum price after the survey had been made. Demands for such legislation led to the ten-year fight in Congress which resulted in the passage of the Pre-emption Act in 1842. This law gave the settler the right to 160 acres at $1.25 per acre and allowed a total of twenty-one months in which to pay for his claim. 

From pre-emption it was a logical step to the homestead. The pioneer who felt that land should be free to him, who braved the rigors of frontier life kept up a constant agitation for homestead legislation. In spite of Southern and some Eastern opposition and a veto of a homestead bill by President Buchanan in I860, Congress finally succeeded in 1862 in sending to President Lincoln for his signature, a bill which provided for a free grant of 160 acres of land to any person desirous of making his home on the public domain. Five years' residence was required before a final patent could be obtained. 

So long as the westward advance was confined to the fertile Mississippi Valley the pre-emption and homestead laws were adequate. When, however, civilization began to spread into the Great Plains region, that vast area between the Missouri River and the Rocky Mountains, a 160-acre farm was not adequate to support a family. This domain of insufficient rainfall and relatively high winds was not adapted to agriculture without resort to irrigation, but was admirably suited to the pastoral pursuits. Irrigation projects were expensive and grazing activities required much more than the 160 acres provided by existing laws, making it necessary to modify the land system to meet new exigencies. The Timber Culture Act of 1873 which was designed to encourage the planting of trees on the western prairies and the Desert Land Act of 1877 which had for its purpose the reclamation of arid lands were only partial answers to the problem as will be seen from the later discussion of Utah land problems. Later federal attempts to aid reclamation such as the Carey Act of 1894 and the Newlands Act of 1904 offered some relief to Great Plains operators, but the lack of water still plagues the westerner in his attempts to wrest a living from the soil.

A general discussion of the inadequacies of the federal land policy is not permissible in this type of treatment. It will only be feasible here to list briefly some of the problems and to demonstrate them more fully from a discussion of the land policies as applied to Utah. The main defect was the failure to provide a land policy which would meet the needs of a semi-arid region, which would provide land in suitable tracts at a fair price, which would meet the requirements of graziers, and which would eliminate inconveniences to settlers and obviate fraud and speculation. These were the necessities of most of the western area, but Utah, because of its unique type of settlement presented difficulties which the land system was never able to satisfy adequately.

The migration of the Latter-day Saints to the Valley of the Great Salt Lake was a planned movement under the guidance of a man who had a genius for organization. It was only natural then that the settlement of the new land should also be systematic. In order to acquaint himself and his people with the surrounding territories Brigham Young sent out exploring parties to survey the lands of the surrounding Great Basin and he himself made many trips in which he became acquainted with the best places for settlement with an eye to the agricultural possibilities, their nearness to a source of water for irrigation, and the proper location for defense and communication. 

In a letter to the settlers in the Salt Lake Valley from a camp on the Sweetwater, dated September 9, 1847, the leader set forth his important views on the subject of land ownership;

We have no land to sell to the Saints in the Great Basin, but you are entitled to as much as you can till, or as you need for your support, provided you pay the surveyor for his services, while he is laboring for you; and at a future day you will receive your inheritance on the farming lands as well as in city lots; and none of you have any land to buy or sell more than ourselves; for the inheritance is of the Lord, and we are his servants, to see that everyone has his portion in due season. 

Because President Young wished to see the lands distributed fairly, it was decided that the tracts should be small in size. The scarcity of water for irrigation purposes, the sparse labor supply, and the cooperative effort needed to fence and clear the lands, all served to preclude large scale plots.  Other reasons for the small tracts were that the villages must be compact so that the settlers could more easily protect themselves and their livestock from Indians and so that the community could have easy access to the meeting house which was the center of community life in religious, economic, and social matters. 

The plans for settlement of Utah communities generally followed closely the scheme devised for Salt Lake City. The site for the city had been selected in advance by Orson Pratt and his group on July 22, 1847, who selected a location on City Creek. The twelve apostles of the Church were selected by the pioneer company as supervisors for the laying out of the city. The city was to be laid out in blocks of ten acres each with forty acres for the temple. Each block was to be divided into eight lots ten by twenty rods and streets were to be eight rods wide. The plan prescribed even the way that the houses should be placed on the lots so that no houses should be facing each other on the opposite sides of the street. Each house was to be built in the middle of the lot, twenty feet back from the street so that there would be ample room for the planting of shrubs and flower gardens. 

In a letter to Orson Hyde dated October 9, 1848, Brigham Young outlined his plan for the handling of farm lands on an equitable basis:

It is our intention to have the five acre lots next to the city accommodate the mechanics and artisans, the ten acres next, then the twenty acres, followed by the forty and eighty acre lots, where farmers can build and reside. All these lots will be enclosed in one common fence, which will be seventeen miles and fifty-three rods long, eight feet high; and to the end that every man will be satisfied with his lot and prevent any hardness that might occur by any other method of dividing the land, we have proposed that it shall all be done by ballot, or casting lots, as Israel did in the days of old. 

The pattern that had been followed in the settlement of Salt Lake City was used with modifications in colonies founded by the Mormons in other parts of Utah. The settlement of Ephraim is a good example of how the system worked in a small farming community. In this case the town was laid out and each man given a town lot. The surrounding farming lands were usually chosen by lot in twenty-acre tracts, although these tracts diminished in size as the original settlers gave newcomers a portion of their land. The twenty-acre tracts were all enclosed in one large fence which had been constructed by cooperative labor, as had been the case with the fort and the meeting house. Grazing lands were also allotted although there was also one large herd ground where the domestic stock such as work animals and dairy herds were tended by men appointed to do that work. The dividing of the hay lands was done in an interesting manner. The day set for the hay harvest was July 25 and on that morning each man was allowed to go to the meadows and claim as much hay land as he could cut a swath around the first day, after which any person could claim as much land as he wanted from the remainder. The land was not owned in common but was private property to the extent that after it was secured by lot it could be used as the owner saw fit. 

When the pioneers entered Utah in 1847, the territory was still a part of Mexico, but was acquired by the United States by the Treaty of Guadalupe Hidalgo the next year. A land office was not established in the territory until 1869, so that for a period of some twenty-two years the Mormons held the land under squatter rights subject to the allotment plan set up by the Church. With the opening of the land office at Salt Lake City in 1869, the Mormons began acquiring lands under either the pre-emption or homestead laws. The plan followed was for a group of land owners who owned contiguous tracts to band together and appoint one of their number as a trustee who would then file on 160 acres in his name and then transfer the title of the various small tracts to the individual owners. The man to whom the patent was issued was usually paid by the others for the time he spent in improving his title and for giving up his homestead or pre-emption rights. Another method used was the taking up of township sites, but since this required the setting up of a town government with the appropriate officers, it was not very popular and the methods mentioned above became most common. 

In the absence of legal provisions by the federal government for the distribution of lands it was necessary for the Church to be the governing body. In fact, there was no distinct form of civil government in Utah until the setting up of the State of Deseret in March, 1849. The new territorial legislature passed various land laws designed to secure the right of possession of the land. In 1852 a law was passed which stated that when land was sold the seller should give a quit claim deed to the buyer and that this deed should be registered with the county recorder. This first law applied to only surveyed lands, but in 1865 its provisions were made to apply to all lands whether surveyed or unsurveyed. A law passed in 1861 provided that any person who inclosed a portion of unclaimed government land should be regarded as the rightful owner of that land and any buildings and improvements he had placed upon it.  These laws were passed because of the fact that there were no federal laws relating to land being enforced in the territory at that time.

In their handling of land problems the Church leaders of Utah met with but small opposition. The Church was a compact, wellorganized body and as long as its members were in virtual control of governmental affairs things went smoothly. There were, however, some dissenting voices which were typical of the complaints made against the Church system of allocation and control.

In 1866 in testifying before the 39th Congress, Brigadier General Patrick Edward Connor, in answer to a question concerning the means used by the Mormon leaders to exclude from occupation of lands in Utah all those who were not members of the Church, had this to say:

They have granted large tracts of land to the leaders to the exclusion of actual settlers, and the poor of their own people. Very nearly all the good timber and grazing lands in the Territory are thus granted, and the Federal Government and people are taxed by holders of these grants for the occupation or use of the land and timber. 

In 1879 the Public Lands Commission held hearings on land policies in several of the Western states and territories. Among those testifying before the committee in Salt Lake City in September, 1879, was L. S. Burnham, a farmer of Bountiful, Utah. Mr. Burnham stated that he was a Mormon, but not a polygamist; that ! he had been acquainted with the Mormon land system for twenty- I five years, in Utah and the East and that the methods of land dis- 'i posal were different than any practiced under the laws of the*J United States in other portions of the country. In further testi- { mony Mr. Burnham stated that for many years no one was permitted to make any land claims except with the permission of the \ Church. It had been his own experience to be rejected by his bishop when he sought to file on a certain piece of land and it was not until he had been rejected a second time that he learned that no person could file on a piece of land without the sanction of the bishop, and then only a tract of from ten to twenty acres could be j claimed. The witness also stated that since the land office had opened there had been a multitude of fraudulent entries made, for some of which the Church was responsible. It was often necessary for a person desiring land to move away from the most desirable sections or to try and obtain cancellations on older filings that had not been given final proof. 

In his report for the year 1886, Commissioner of the General Land Office, William A. J. Sparks, made the following charge against the Mormon Church:

... In Utah and Idaho, however, it has been found that large farms have been taken up under the preemption law by the procurement of the Mormon Church. The entrymen in one of the principal cases, the evidence of which has recently been disclosed, were called together by a bishop of the church and told that Brigham Young wanted them to pre-empt the lands to prevent the Gentiles from coming in and obtaining the title, and advised them to follow the directions of a certain officer of the church, who would inform them what to do. They were accordingly ordered by this officer to go to the lands and remain one or two days and do a little work, which they did and were then taken to the land office at Salt Lake City, and their filings made in accordance with instructions. After the expiration of six or eight months they were again taken to the land office by the officer of the church, made their final proofs without having lived on the claims, and immediately conveyed the lands to Brigham Young. The Church paid all the expenses and gave each entryman two bushels of wheat per day for the time employed in the business. About thirty thousand acres were taken up in this case, and the lands were patented several years ago and are now held by the church. 

A common complaint of the people of Utah was concerned with the actual workings of the homestead and pre-emption laws. These were centered around the hardships involved in filing and obtaining final proof. In the matter of the pre-emption laws the complaint was often made that it was necessary to file affidavits before the register of the land office, which involved a trip of sometimes three hundred miles, an inconvenient and expensive procedure. It was therefore urged that the law be amended so that affidavits could be taken by the county clerk or, better yet, by any local notary public. It had been the practice of county clerks to help applicants file their applications, which had led to many mistakes. This system was also denounced because local land office officials were prohibited from helping settlers file their applications. 

In the matter of homesteads the requirement that an oath be given on the opening entry, something not required for pre-emption, was criticized as a discrimination against the homesteader. As in the case of pre-emption it was also urged that the settler be allowed to make his proofs as to residence and cultivation before a notary public so that it would not be necessary for him to make a trip to the land office. It was also recommended that a person who had not filed an application for or made final proof on a full 160 acres be allowed to make another entry which would bring his claim up to the limit allowed by the law. In cases where a homesteader had been unable to make final proof on a claim, it was suggested that he be allowed to make another entry without losing his homestead right. 

The cause for greatest complaint from settlers came from the delay in the issuance of final patents for homestead and pre-emption claims. Such protests were usually unavailing because of the press of business and the shortage of competent help in the central office. Not many settlers had the perseverance and courage of one who was willing to exhaust every available means to get his patent and whose case is most interesting, if not unique. In 1877 Mr. Thomas McBride of Grantsville, Utah, forced through the courts the second writ of mandamus against a cabinet officer in United States history to secure the issuance of a patent for lands on which he had made final proof in 1874, but for which he had not received the patent at the end of three years. The case went to the United States Supreme Court and McBride won. The Secretary of the Interior, Carl Schurz, was obliged to issue the patent and pay the cost of the proceeding. 

It had also been the experience of applicants that when they went to file on a piece of land they found that it was already a part of a townsite. The Townsite law had been amended in 1877 to allow an incorporated village to take up as much as 2,560 acres of land by which means the town officials could exclude those to whom they did not wish to grant land within the town limits. Such actions deprived settlers of much valuable land that could be used for agricultural purposes because of the fact that many townsites did not require so much land for village use. 

A major deficiency of the land policy as related to Utah was that concerned with the inability of the livestock interests of the territory to obtain sufficient land for grazing purposes. Under either the homestead or pre-emption laws a maximum of only 160 acres could be obtained which was entirely inadequate for livestock raising which required at least ten acres of land for the sup-r port of each head of cattle and approximately two acres for each sheep. The grazing industry was conducted on a different basis in Utah than in most of the other Western states or territories. In Utah a stockman usually required a winter and a summer range, the former in the protected valleys and the latter in the foothills of the mountains. Because of this system it was necessary for the stockman to have control of two grazing areas instead of one. Under the laws he was assured of neither. The ranges were open to all on a first come, first served basis, but even the first comer was not assured that some other stockman would not encroach on his grazing lands. Under such a system it was not possible for the cattle or sheepman to make any improvements upon grazing lands or to improve his herd by the importation of high grade bulls or rams. This system also led to overstocking of the ranges and a rapid depletion of the grasses. Frequent clashes between sheepmen and cattlemen took place in their struggle for grass. The cattlemen claimed that the sheep would drive cattle off the ranges because the sheep nibbled the grass so close and trampled it into the ground so that the cattle could not graze on land that had been occupied by sheep. Even the smell of sheep drove the cattle off of the pasture lands.

The livestock interests thus clamored for something to be done by the government to alleviate their difficulties. Two ways were suggested by which this could be accomplished: grazing homesteads, and leasing of grazing lands. The grazing homesteads should allow entrymen to acquire much greater quantities of land, up to as high as 3,000 acres, by which means at least the minimum grazing land requirements could be met. 

The lease system would allow the stockmen to lease at a low rate per acre, 10 to 30 cents, sufficient amounts of land to graze his herds or flocks, based on the number of animals which he possessed. The leases should be for at least five-year terms in order to insure permanency of range tenure. Both plans were to be applied only to those lands that were not suitable for farming, but which were adapted to pasturage uses. 

Another plan suggested by the surveyor-general of Utah, Nathan Kimball, in 1876 was that of allowing the purchase for cash of tracts of upland or mesa lands in sufficient quantities to meet grazing needs. Such a plan, according to its sponsor, would lead to the improvement of lands which were not along the stream beds and thus not susceptible to irrigation, and from which neither the government nor the citizens were acquiring benefits. 

The Desert Land Act of 1877 offered some relief to stock growers because it allowed them to purchase 640 acres of land, but the requirements that the land should be irrigated and the final price of $ 1.25 per acre were deterring factors. Interest in the act is demonstrated by the fact that during the first three months after its passage in 1877 there were 139 entries filed aggregating 42,652 acres. Objections to its operations soon became apparent, however. Graziers could not afford to pay the price for the land and could not profitably fulfill the irrigation requirements. Farmers, on the other hand, found that the price was not objectionable, but that the requirement that the irrigation system be installed within three years was often impossible of fulfillment. It was thus suggested to the Land Office that the law be amended so that the settler would be given a longer period of time, say five years, in which to irrigate the land and get it under cultivation.  A careful scrutiny of the Land Office Reports for the years 1877 to 1910 fails to reveal widespread fraud under the Desert Land Act in Utah, as was the case in Wyoming, and other Western territories, but it does point out the fact that the Utah residents usually showed little interest in acquiring land in this manner.

The matter of illegal fencing of the public domain in Utah requires but scant attention because the practice was never so prevalent as in many of the other Western states and territories. By comparison with such states as New Mexico, Colorado, and Wyoming, it was almost negligible. In New Mexico, in two counties, three million acres were enclosed. In Colorado two companies enclosed a million acres each. In Wyoming in 1885 the Land Office investigated 186 cases of illegal fencing while in Utah in the same year only 13 were investigated. Of the cases investigated in Wyoming, for which the acreage is shown, 9 of them aggregated 25,140 acres, while the figures for Utah show only A cases confined to San Juan and Emery counties which totalled 9,800 acres. By comparison with other regions, then, the problem of illegal indosures in Utah was small and prosecutions under the law of 1885 which forbade such practices were few in number. 

By the act of September 9, 1850, Utah had recdved an unusually generous grant from the federal government for the support of schools. The territory was by that act granted sections 2, 16, 32, and 36 of each township for educational purposes, but, as in the case of most territorial grants, the lands were held in trust by the federal government and the grantee could derive no benefit from them until they were granted to the territory on July 16, 1894. Utah received 5,844,196 acres of these lands. Utah was thus forced to finance her school system for forty-four years without help from land income. From time to time cases came up in which a settler had filed on tracts within the school sections, but attempts of the territory to preserve these lands for school purposes met with small success. In a typical case in 1880 Secretary of the Interior Carl Schurz reversed a devision of the Commissioner of the General Land Office and granted to Jane Hodgert a quarter section of school land in the Salt Lake City district. Schurz claimed that the land in school sections had not been granted to the territory but was merely reserved and being held in trust until a grant was made. Mrs. Hodgert, whose husband had filed on the land in 1876 and obtained final proof in 1878, was thus allowed to keep the land and the territory would later be able to select a tract of equal size in some other section as an indemnity.

In summary it would seem from the above-mentioned instances that the land policies of the United States as applied to Utah were not overly successful. The homestead and pre-emption laws caused inconvenience and expense to the settlers. Township sites had excluded settlers from much desirable land. Livestock raisers were not given large enough tracts and their tenure of the ranges was insecure. The requirements of the Desert Land Act were too difficult of fulfillment. Finally, the school land grants were held in reserve and the territory was not able to gain any benefit from them. These factors coupled with a considerable number of fraudulent entries and some instances of illegal fencing of the public domain had failed to realize the government's ideal of making the lands readily available to the people who could benefit most from their utilization.

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