1. A MODEST PROPOSAL

Public Ownership for the Public Good

I became the voice of John crying in the wilderness for a more adequate public control.

—ELWOOD MEAD, WYOMING STATE ENGINEER, 1890–1899¹

Place: Clear Creek and French Creek, northeast Wyoming’s Big Horn Mountains.

Time: The 1890s.

Buffalo, Wyoming, and Clear Creek. J. E. Stimson Collection, Wyoming State Archives.

ON A HOT JULY day in 1890 under a clear blue sky, people turned out to celebrate the transformation of their territory into a state.

“With all the Pomp and Ceremony of a Mighty State—A Grand Parade—Eloquent Addresses!—Firing of Cannon!—Elaborate Fireworks!—Reception and Ball!”crowed a newspaper in Cheyenne, capital of the new state.² Statehood meant a lot: no more top officials appointed from Washington rather than elected by local people, and hopes for an influx of new people and money to Wyoming’s sparsely populated lands.³

The parade filled the streets. Marching bands, national guardsmen, and the new state flag flanked by “girl guards” stepped out with ranks of Civil War veterans, two good-looking milk cows to tout a milkman’s business, and a float from an ice-cream confectioner featuring “a fat boy dressed up gaily” with a sign testifying that he ate that ice-cream.⁴

Speeches focused on the recognition of voting rights for women—something Wyoming had already done twenty years earlier as a territory and which now, as a state, it was the first in the nation to do. Despite the territorial tradition, there was not universal support for women voting. One of the honored speakers on statehood day, Theresa Jenkins, went door-to-door in Cheyenne the year before statehood, when she was nine months pregnant, to rally women to head to the new capital building and fight a proposal by a few men in the state constitutional convention who wanted to take votes for women out of the constitution and isolate it for voters to decide separately.⁵ When she spoke at the capitol on the celebration day the next July, Jenkins graciously omitted any reference to the opposition: “Happy are our hearts today, and our lips but sound a faint echo of the gratitude within our bosoms . . . We have been placed upon the very summit of freedom and the broad plain of universal equality,” she said.⁶

Francis E. Warren, the territorial governor—like many of the leaders of the territory, a Civil War veteran—would soon be elected state governor, a post he quickly abandoned to become a US senator. Warren struck the same note in his speech:

Here, in the open air, near the crest of the continent, Wyoming, forming the keystone of the arch of states extending from ocean to ocean, celebrates an event significant in the extreme, new in the history of our country, and without precedent in the world; that is to say, a state, in adopting its constitution, extends free and equal suffrage to its citizens regardless of sex.⁷

There was one other unusual portion of the constitution adopted for the new state of Wyoming, which otherwise largely copied what had been done by other recently admitted western states. The other notable portion in the new constitution dealt with a quite different issue: water.⁸

Water was a resource that was scarce and therefore valuable. It was in demand and not always easy to access, particularly for the agriculture believed to be important to Wyoming’s future. The state constitution proposed to sort out and stabilize water use.

The poet of statehood day, after celebrating women’s right to vote, led her listeners to appreciate the further promise of the new constitution for a new dawn:

If we look within the future, our prophetic eyes can see
Glorious views unfold before us, of joy, wealth, prosperity,
We can see the sons of Science, Music, Poetry and Art
Coming to our grand dominion, in our growth to take a part.
We can see the iron monster, rushing fiercely to and fro,
We can see the sky o’erspread with smoke from furnaces below.
 . . . See the plains, now dry and barren, where the sage or cactus grows,
Desert plains, no longer barren, then shall “blossom like the rose.”
Thirsty lands, no longer thirsty, filled with moisture wisely stored,
Bounteous to the happy farmer, noble harvests will afford.⁹

Two of the young “sons of Science” of whom she spoke had in fact recently come to Wyoming. They were already at work on that celebration day, acting out their ideals of public service. One was Edward Gillette, a Yale-educated railroad surveyor. The other was Elwood Mead, a Purdue-trained engineer. Like the poet, both saw science and planning as the tools to help turn the raw settlements of a territory into a community.

Gillette, at thirty-six, arrived in Wyoming the summer before, heading the first railroad survey into northeastern Wyoming—Powder River country. He laid out routes to ship out cattle and coal. He was earnest and thorough, and the railroad he worked for put his name on a town that ninety years later was the capital of the US coal industry.¹⁰

Gillette soon saw the impact of his work firsthand in the town of Sheridan, nestled in rolling lands where the Big Horn Mountains meet the Powder River basin right near the Wyoming-Montana line. Fledgling farmers and small stockmen in that area were mired in a swamp of debt. Once Gillette’s rail line connected them to markets a couple of years after statehood, though, they quickly made their way to solvency, even prosperity. Gillette liked adventure; he later went off to survey the rail route to the Klondike gold fields. But he had fallen in love with a girl from Sheridan. It was there that he settled down.¹¹

The other young Son of Science, Elwood Mead, was thirty in the summer of 1890. He had arrived in Wyoming Territory two years earlier and had spent months driving a wagon across it, gauging creeks and rivers, examining county record books, and mentally drafting water statutes. He had crafted a whole new scheme for water management and had managed to get it written into the new state’s constitution. Now he had to put that scheme into action.¹²

Having grown up on an Indiana farm by the Ohio River, with plenty of rain and floods, Mead landed his first job teaching agricultural engineering in Fort Collins, Colorado. In Colorado, Mead saw firsthand what water in a dry country could mean for good and for ill. On the Colorado plains, as in Wyoming and much of the West, precipitation was perhaps one-third of what it was where Mead grew up. There could be raging floods in the spring but dry rivers in the fall. Mead worked in the summers for the top water official of Colorado, gauging irrigation ditches along the South Platte River, which was home to assorted irrigation colonies and ditch companies competing for water. When new ideas for managing that competition failed in the Colorado legislature, Mead took up an offer to move north and become Wyoming’s first territorial engineer, in 1888. When he arrived, he started drafting new laws, to avoid the water problems he’d seen in Colorado.¹³

Within a few years, Mead and Gillette joined forces, and together they put Mead’s new ideas about water to work in Buffalo, Wyoming, along the Big Horns south of Sheridan.

Centuries before Mead and Gillette, the land they saw anointed as a state had been familiar ground for a variety of peoples. By the 1830s, as the United States gazed increasingly westward, a people who became known as Eastern Shoshone were in the southwest portion of what became Wyoming. Northern Arapaho were in the southeast and central areas, Crow in the north and central areas, and Sioux in the northeast. As hunting peoples, they moved back and forth across the landscape with the game and the seasons, using both land and water lightly (unlike the people for whom Mead did his planning). Each dealt with incursions from European-origin people differently. The Eastern Shoshone, who joined the “rendezvous” fur trade meetings in the 1820s and 1830s, held to a friendship policy, even as increasing numbers of newcomers in the 1850s and 1860s beat a path to the Pacific Coast across their lands and killed or drove out game along the way. The Northern Arapaho, Crow, and Sioux tended to clash with those trespassers on their hunting grounds.¹⁴

Though the US government initially signed treaties recognizing vast areas as exclusive tribal lands, increasing overland wagon trains and construction of the transcontinental railroad led the federal government to force new deals on the tribes. In 1868, the Northern Arapaho and their neighbors, to protect key lands for their own use, agreed to sign with the United States a treaty that was soon shredded. Also in 1868, the Eastern Shoshone accepted treaty establishment of a reservation of over three million acres embracing the Wind River valley in western Wyoming. That was a drastic drop from the 45 million acres (across what are now several states) the government, only five years before, had promised for the exclusive use of the Shoshone and their related tribes.¹⁵

The idea of boundaries, however, was alien to people who had known none and had moved when they liked—wherever the opportunity for food and shelter, and the lack of opposition, had allowed. Not until the 1870s did scarce game and the US Army ultimately force native people like the Shoshone to settle on the reservations, the only places they could receive promised federal government support.¹⁶

When Wyoming became a territory in 1869, new legislators immediately attacked the treaties of 1868. The new territorial governor said the treaties had locked away from settlement important parts of “our strong box and our garden spots.” Of the reservation on the Wind River, the legislators at first demanded that it be eliminated, and that the people on it be moved elsewhere. Two years later, with that goal not achieved, the territorial legislators insisted that Washington drastically cut back the size of the reservation. Their pressure began a nearly forty-year process that ultimately succeeded. Meanwhile, the treaty signed by the Northern Arapaho and their neighbors in 1868 soon became meaningless, drowned in bloodshed as European-origin settlers claimed gold or land in treaty territory. In 1876, just a little north of the boundary of Wyoming Territory, the Sioux and Cheyenne wiped out George Armstrong Custer’s forces—but were ultimately forced out of their most prized lands in northeast Wyoming. The Northern Arapaho, in 1878, were forced by the US Army onto the Eastern Shoshone’s Wind River Reservation. When a key US Army general sympathetic to the Arapaho died, Northern Arapaho hopes of getting their own reservation died too. The Shoshone and Northern Arapaho had long been enemies, but the “temporary” arrangement for both tribes to live on the Wind River Reservation became permanent.¹⁷

Soon after, the town of Buffalo bustled rapidly into existence. In 1879, the US Army built Fort McKinney on a good stream called Clear Creek in northeast Wyoming, among fertile foothills on the edge of the Big Horn mountains. The fort was intended to solidify the army’s presence east of the Big Horns. As soon as the fort was established, its commander and provisions master set the pace for claiming land and water. They filed papers on public land just outside the fort boundaries so they could grow hay to sell back to the fort. Traders, suppliers, hotelkeepers, and brewers materialized (with the first hotel and bank sheltered in a tent), and together they built a town. Nearly all the shop owners in town filed on land, and more importantly, on water. With both in hand, they raised cattle, hay, garden produce, and barley for the humming breweries. Even when the army shut the fort in 1895 and the soldier-customers disappeared, the town found the strength to stay. In the one hundred years since, a remarkable number of the names from the early 1880s have continued to populate Buffalo, its neighboring ranches, and its elected offices. The hotel that emerged from a tent is still operating there, too—with weekly music jams where locals play bluegrass.¹⁸

Getting access to water was no small part of the enterprise of those first settlers in Buffalo. In 1884, for instance, some went up into the mountains and with teams of horses cut a diversion over the intervening divide to take water out of Clear Creek and put it into the headwaters of the smaller French Creek, which ultimately joins Clear Creek a little east of Buffalo. They managed to get their diversion installed just days before the big Wyoming Land and Cattle Company, south of town, built a diversion to tap Clear Creek for its ranch operations.¹⁹

French Creek is not fed by the high mountain country that feeds Clear Creek. Left on its own, French Creek would run dry in early summer. So French Creek valley became and remains a green and pleasant place, not so much because of French Creek itself, but because of the water brought to it from Clear Creek.

Meanwhile, the town of Buffalo grew—and it, too, relied on Clear Creek for water. The intricate patterns of what water went where, in the ditches dug by busy settlers with mule teams, were a nightmare to sort out. Young Mead soon cited them as western classics of dizzyingly complex irrigation systems.²⁰

For well over a century, Buffalo and French Creek have kept going, supported by their tangle of irrigation ditches. The local economy has been agriculture, but also scenery—since the 1880s, “eastern money” has come in to buy and keep some of the beauty of the Big Horns foothills (and dude ranches sprang up before World War I, bringing in visiting money that some local cowboys managed to marry into). By the mid-1990s, only one ranch on French Creek was making a living from agriculture; the other owners ranged from a retired major oil company CEO, to a New York banker, to the county attorney making a living in town. In 2020, Buffalo is best known as the real-life inspiration for the town featured in the Netflix Western series Longmire. Buffalo has grown a little, and with it have bloomed sales pitches for “ranchette” subdivisions. Squabbles over land use planning follow. The question is whether, and how, to manage the beauty of the open spaces that has been an important resource for the town since it began.²¹

Notably, it is newcomers to the area—not the people with big money, but the ones dreaming of ranchettes—who have been the main opponents to land-use planning. They came “out West” for freedom from the rules they knew back in, say, New Jersey, and they are determined to make their idea of freedom stick here. Wyoming’s “Cowboy State” logo can attract such people. Yet while the standard polemic in Wyoming may be anti-government, the standard experience has long been joining together in government. In a big place with few people, government is an intimate affair. It really is by, for, and of the people. People are members of their local boards and agencies; they have often known their legislators and their governor personally. The lone rancher trying to make a living on French Creek in the 1990s, on the place his father built in the 1940s, was elected to the county commission and pushed for land-use planning.²²

People in Buffalo—and in Wyoming—have wrestled before with how and whether to plan for and manage natural resources. Though it’s not always recognized, they, and others like them in the West, have some special history to draw upon. It is the history of water management that starts with bright young Elwood Mead. He helped Wyoming people come up with a unique way to handle the water resource they all depend upon. French Creek, as it happens, was a key testing ground for Wyoming’s initial experiment in water management. Buffalo and its neighboring ranch valleys, so attractive to newcomers today, attest to the strengths of that scheme for managing water that has grown and changed to meet assorted challenges over a century.

In early 1888, Mead, the twenty-eight-year-old engineering professor, received a letter from his former boss, E. S. Nettleton, who had been Colorado State engineer. The two had become close friends. Nettleton wrote that he had been talking to a Wyoming legislator interested in water, helped draft a bill to flesh out a job overseeing Wyoming water, and recommended Mead for the job.²³

Mead traveled the forty miles north to Wyoming’s capital city, Cheyenne. He discussed the job with some legislators and Thomas Moonlight, the territorial governor. Moonlight, once a losing candidate for governor of Kansas, had been appointed to Wyoming by the Democratic administration then in Washington. He was blustery, chronically at odds with Wyoming’s Republican territorial legislature, and certainly not politically adroit.²⁴

A few hours after their interview, Moonlight ran into Mead on the street in Cheyenne. The governor stopped him, as Mead recalled years later: “He said, ‘You’ve been on my conscience ever since I first saw you this morning. I didn’t know you were so young. If I had known this I would never have offered you the place, and the reason is that if you come here I am sure you will fail.’”

“The Governor had quarreled with the Legislature,” Mead went on, “and had an unfavorable opinion of the influence which dominated public life in Wyoming. He ended his talk with me by saying, ‘I do hope and pray to God that you will reconsider and not accept this place.’”²⁵

Mead went back to Fort Collins, where over the next few days, others painted a more favorable picture of Wyoming politics.

Then Mead met, in person, “the influence which dominated public life in Wyoming”—Francis E. Warren, later a headliner at the statehood celebration. A Massachusetts farm boy who went off to the Civil War, Warren had arrived in Wyoming in 1868 at age twenty-three to work in a dry-goods store. He soon took over the store and ultimately plunged into almost everything he could think of—ranching, starting an electric lighting company, and investing in blocks of downtown Cheyenne real estate. In 1888, Warren, at forty-three, had lately been the territory’s staunch Republican-appointed governor, and soon would be again; he despised Moonlight, whom Democratic president Grover Cleveland had appointed to replace him.²⁶

Warren was in fact Wyoming Territory’s only mostly home-grown governor, and he fought for “home rule” and statehood. His greatest talent was politics, and he managed to unite Wyoming’s warring petty political factions to bring in the federal largesse that alone could make up for gaping holes in a place likely to see only slow development. After statehood, he spent more than thirty years doing just that as US senator.²⁷

Warren made his way by his ability to judge people—one of his many ventures was assessing business prospects for the predecessors of Dun and Bradstreet—and to use his blunt charm, or money or threats, to get key people to do what he wanted. His voluminous letters between Cheyenne and points east, stored today at the University of Wyoming, make him appear to have been a formidable mix of Theodore Roosevelt (a friend) and Lyndon B. Johnson, without their interest in or impact on national policy. Warren asked Mead to take the territorial water job. (As he told Mead years later, however, Warren saw Mead as “still wearing pinafores” when he first came to Cheyenne.)²⁸

Mead, meanwhile, wanted the job, regardless of Moonlight’s advice. Mead’s baby face belied his determination to put into action his ideas about water in the West. In Colorado, he had seen bitter struggles between would-be farmers and ranchers, and between farmers and would-be irrigation companies—fights over who had rights to how much water, and battles over speculation in water and attempted monopoly of water supplies.²⁹

Wyoming Territory, with settlement, government, and water law all in a fledgling condition, presented—far more than did Colorado—a clean slate on which Mead thought he could chart new policy. He believed that western states could avoid destructive conflict by using public control to manage resources for the greater public good. Warren and his associates also saw public order as critical to buttressing their business prospects and investments. Stockmen needed a reliable system of water rights to protect the small clutch of water claims on which their stock increasingly depended. Further, because their open-range stock industry had begun to founder, they were looking toward new kinds of development for a territory where there was not much other economic activity. Warren and other stockmen had in fact already invested in at least one new irrigation venture, which might benefit from an orderly water rights system controlled in Wyoming.³⁰

So Mead came to Wyoming backed by Wyoming patrons, both he and they believing that the time had come for firm state government intervention in water rights matters. Mead’s commitment to government involvement in water went deeper, however, than his stockmen backers probably understood at the time. Mead felt that those who drafted new water law in the West were shaping legal principles controlling not only water use, but also “the social and economic fabric under which unnumbered millions of people must dwell.” For him, that imposed a near sacred duty.³¹

Mead saw resource law, based on public ownership, as a tool that people in new territory could use to foster communities. He had a specific kind of community in mind—a community self-sufficient not only in economic but also in social terms, providing itself with the educational and cultural resources to make rural America a vital and satisfying place to live. These communities would then also become the birthplace to the kind of citizens a democracy needed.³²

Though his belief in the connection of resource law to democratic societies had a rosy tinge, Mead disparaged the extreme agrarian romanticism of leading irrigation boosters in the 1890s, who imagined the West as a garden spot that would bloom if just a little money and water were added. He partook more in the natural resource conservation thinking that was beginning to come of age in the late-nineteenth century, with the dawn of the Progressive Era and eventually the era of its conservation standard-bearers, Theodore Roosevelt and Gifford Pinchot. Mead believed in government’s giving a preeminent role to science, to scientists, and to engineers in managing resources for the greater good. He thought that public resources should be put to work through private use, but they should never lose their public character and their ultimate subjection to public control. The goal was to ensure that public resources would continue to serve changing social needs.³³

After a few years of work in Wyoming, Mead’s thinking matured into a belief that a public grant of private rights to use water should be decades-long, not perpetual, and that it should have rental fees attached—in order to remind users that the public owns the water. He attested to “believing fully in the doctrine that public waters should remain a public property, and that to grant private perpetual rights is to sacrifice the welfare of future generations.” After Wyoming, he spent a few years in Washington and then went off to Australia to work where people supported the approach to water he advocated.³⁴

In the United States, Mead had not found it easy to put such beliefs into effective action. From Australia in 1908, he fumed, in a letter back to Wyoming:

The difficulty encountered in maintaining public ownership of water in the United States grows out of the fact that for fifty years we have been a spendthrift nation, and public opinion has favored the prodigal disposal of public resources.

The consequence is that it is ceasing to be a land of opportunity, and is becoming instead a land where the predatory and powerful rich have most of the resources and privileges, while the great body of the middle and working classes have narrower opportunities than in many older and poorer countries.³⁵

Mead was driven by his social and political passion, his sense of moral duty. He did his best all his long life to translate vision into practice in several resource fields. In the 1890s in Wyoming, he not only wrote new water law but proposed a variety of changes to land law. Into the 1930s, (when his seventy-year-old, still-baby-face gave him a benevolent look in the eyes of the young New Dealers he mentored), he agitated for rural planning and credit systems in order to wipe out farm failures in the West and sharecropping in the South—all to be spearheaded by the agency he came to head at the close of his career, the US Bureau of Reclamation.³⁶

To understand what Mead did in Wyoming, in the first big step of his career, requires a dive into nineteenth-century legal theory and practice.

Water matters in Colorado and California, the western states in the spotlight at the time, were dominated by private scrambling, wrangling, and speculation in water. That pattern had begun to make headway in Wyoming. To defeat it, Mead posited a rational system, animated by a single idea. That idea was active public ownership of water through state supervision of private rights to use water.

Public ownership of water was old legal language, borrowed from the Romans and from English common law. It was a phrase worn out and largely emptied of its meaning, though typically adopted by western states and by Wyoming as a territory. But, as water rights really operated in Wyoming in 1889, public ownership was “simply a fiction,” Mead told the people of the territory after his first year as territorial engineer.³⁷ Under Mead’s plan, public ownership of water in Wyoming would be a serious matter—there would be state allocation of water, and state-imposed limits on what a private water right meant. That was in stark contrast to water law then prevalent in the West, called “prior appropriation,” a product of forty years of local practices, hodgepodge legislation, and a growing pile of court decisions.

Prior appropriation was developed on the western frontier. The concept behind it was that firstcomers could take water from a stream, move it elsewhere—sometimes quite far away—and have a protected right to use as much water as they needed for a productive use.³⁸ Previous British and US law had said something quite different. The original rule in Britain and in the eastern US was that a person had to own land on a streambank to use water from that waterway and had to use the water on that land. It was called a “riparian” right to water, from the Latin word ripa, meaning streambank. Under riparian law, any and every streambank owner along the length of the stream had a right to use the natural flow of the stream on the adjacent land, while the stream flowed on with good quality and quantity of water for the next users. It made sense in areas with plenty of rainfall, many streams, and water use that typically amounted to only domestic use, livestock use, and waterpowered mills—places like the Ohio farm where Mead grew up. There was little danger there of creeks, or the Ohio River, being significantly drawn down by users. The streams could be shared. With industrial and urban growth in such places in the nineteenth century, further guiding principles in riparian law developed. Where growth caused conflict over water, the courts determined that each water use should be “reasonable,” so that others might have opportunity for their own (reasonable) uses. There could, of course, be a variety of considerations defining “reasonable use”—the purpose of the use, the economic and social value, the potential for harming others. Occasionally, courts might decide that riparian law could allow use away from the stream, and they might protect big investments in a use against a later comer. Courts took on a balancing act aiming at fairness to all. That could, of course, make the extent of a water right uncertain as times changed.³⁹

People heading West found a situation very different from the one they had known in the East. They wanted to be able to take what water there was and move it wherever they could use it—and they wanted clear and certain rights to that water. As the United States acquired the western region through conquest and sale, most land was considered owned by the federal government and known as “the public domain.” People often got to that land, however, before the federal land offices got there to survey and dispose of it by law. Those early arrivals had to set their own rules for using resources. Farming and ranching in an arid land can lead to community sharing of shortages and surpluses, as demonstrated by traditions of the former Spanish colonies in the Southwest. On the public domain in California and Colorado, however, the newcomers wanted gold, not farms. There were struggles in the mining camps over different approaches, but water sharing tended not to become standard.⁴⁰

The typical rule was that the best water rights would go to firstcomers. If supplies should run short, those who had claimed and used the water first would get all their water before later comers got theirs—no balancing act required. That appeared to be a way to support economic development. As farming-minded settlers succeeded miners, the same rule tied into the nineteenth-century American idea that the labor of settlement should be rewarded with ownership of resources, in order to create an independent, self-sufficient society. That belief had led Congress, starting in the 1830s, to give squatters on public lands the ability (called a “preemption” right) to buy land if they had settled there before the land went up for public auction. The hope of creating territories of independent small settlers blossomed during the Civil War into the Homestead Act, when Congress had no slave-state members to block it. The Homestead Act allowed settlers to get title to, usually, 160 acres of land—considered enough to support a family—after living on the land for a period of years and building improvements (plus a small filing fee). A good-faith effort to settle the land was thus rewarded.⁴¹

If good faith effort should make it possible to acquire rights to land on the public domain, why shouldn’t that apply to water on the public domain? Western courts ultimately agreed. They ruled that taking water out of a stream and putting that scarce and precious resource to some productive use would be a “beneficial use” that should be rewarded with a legal right to the water, even if the water was completely consumed. The only restriction would be against wasting water. Diverting water from a stream and using it “beneficially” and regularly, in the season appropriate to the use, became the standard way to get rights to water in most of the West. Just putting water into a ditch amounted to staking a claim that could in time become a right protected by law. Courts used the word “appropriation,” which means taking something for one’s own. Lawyers sometimes equated it to hunting game on the frontier: “He who wanted water took it.” “Appropriating” the water first gave a person a “prior” right—thus, “prior appropriation.” A prior appropriation water right was a definite right to a certain amount of water. The right could not, of course, ensure that water would always be there in the many streams that naturally went dry after their mountain snowpack sources ran low. But holding a prior appropriation right meant that if water was flowing, the person with the prior right got his water before people holding later rights got any.⁴²

Prior appropriation became common custom. It started primarily among some gold mining communities in California and Colorado and was accepted by courts in those states and later applied to irrigation (California created troubles by recognizing both riparian and prior appropriation rights). Courts determined that holding a prior appropriation right meant a person had a right that could be protected like private property. He kept the right to take, transport, and use the water. He could lose his rights by failing to use the water, for five years or so. But if he kept using the water, it was his. His to use, and his to sell, if he pleased.⁴³ The hunting analogy that was used when describing the taking of water was soon “stretched,” one lawyer noted later: “He who took water without so much as anyone’s by-your-leave acquired not only that which actually he took but also a right perpetually to take; hence the difficulties.”⁴⁴

In many places around the West, there were fights over exactly how much water had been put into use and when, to establish the basis of a prior appropriation right to water. The earliest claims, after all, had the highest value as the best rights. As economies in western states changed and developed, proposals for new uses of water grew, and disputes intensified. Some saw opportunities to monopolize water. The fights were sometimes on the riverbank, with fists or guns rather than lawyers. Sometimes, the struggles were in court; sometimes, they could be settled by an exchange of cash. Sometimes, the battles were in the legislatures, where one side might call for wholesale condemnation of the other side’s water rights. Courts, not knowledgeable in streamflow or water use, tended to award rights based on ditch size. A man could dig a ditch much larger than his immediate use and hope either to expand his use or sell the excess water at exorbitant prices. Meanwhile, investors put together canal companies to build extensive and expensive ditch systems, believing they must control the water, charging water “royalties” in addition to fees to cover canal construction and profit, and threatening to withhold the water if farmers didn’t pay the royalty.⁴⁵

Looking back years later, Mead called the amalgam of mining camp customs, court decisions, and early state statutes in California and Colorado “the ruck of the arid States of America, whose water laws belong to the lower Silurian period.” Reading all he could find on water and water management, he came upon publications by John Wesley Powell and William Hammond Hall—respectively, the US Geological Survey chief who had explored the Colorado River, and the first state engineer of California, who later worked for Powell, joining Mead’s friend Nettleton there. Powell and Hall inspired in Mead a faith in the power of planning and supervision of resource use to make stable societies possible in the arid West.⁴⁶

Mead subscribed to the general belief that water had to be put into private hands to build economies and societies in the arid frontier states. How to do that while recognizing the special qualities of water was the challenge. California’s engineer Hall had called water “that kind of property which no one can own” yet many could lay hands on to use however they liked. Hall argued that in the early years of any new civilization, “the necessity for guarding the common prosperity of all people is not felt.” Now, Hall wrote, the West must move ahead and recognize that necessity.⁴⁷

The solution Hall proposed was imposing state supervision on the reigning chaos in water rights. He and Nettleton were out of office in their states, though they remained active in policy debates. Mead was in position to propel a new system in a new state. Nettleton and Hall wrote to Mead and laid out their objections to “prior appropriation” in water law. As Hall put it to Mead, “It has been the curse of irrigation from time immemorial, that water has been treated like it was a beast—to be shot down and dragged out by the first brute that came in sight of it.”⁴⁸

Mead shared that antipathy to pure—unregulated—prior appropriation. As he later wrote, “It is wrong:”

It assumes that the establishment of titles to the snows on the mountains and the rains falling on the public land and the water collected in the lakes and rivers, on the use of which the development of the State must in a great measure depend, is a private matter. It ignores public interests in a resource upon which the enduring prosperity of communities must rest.⁴⁹

With his plan for imposing state supervision, however, Mead admitted “prior appropriation” into the new system for Wyoming. A good deal of his new water-law code would adopt basic prior appropriation ideas. Water rights were to be based on use of water, not ownership of land next to water, and the water could be diverted to other lands. A would-be user had to give notice of her intent to use water. Priority access to water in times of low flows would go to the person who had made clear, before her neighbors did, that she planned to use that water and had followed up by actually putting the water to a beneficial use within a reasonable time and continuing to use it regularly.⁵⁰

Prior appropriation in Mead’s system was different, though, because it was subject to severe state control. Giving new life to the tired old language of public ownership of water, Mead made the concept of “public waters” the answer to the riot of private rights in water elsewhere in the West. The public, represented by the state, had key rights in water. The state could decide who got a private right to water and define exactly what that private right to water consisted of, in volume, timing, and use. It could determine whether a person had lost that right to water by non-use.⁵¹

Significantly, Mead’s system also put special controls on private rights in water for irrigation, the highest-volume use, and the one he and others expected to be the most important to future prosperity. Mead planned to require that a water right could not be sold away from the land it irrigated. As Hall and Powell had suggested, Mead said, irrigated regions would flourish when “the land appropriates the water.”⁵²

Mead had taken to the hustings in 1887 to advocate for that principle at a meeting of Colorado farmers. Citing Hall and Powell, he told the farmers that water scarcity could be a blessing; it could foster a high level of civilization because in living with scarcity, people learn “the value of co-operation to a common end.” Yet in Colorado, prior appropriation law made him fear that “the foundation of monopolies a hundred-fold more exacting than Irish landlordism is being laid.” The farmer, not the canal companies, put the water into use and, Mead said, made “the barren plain into productive fields, [and] . . . covered this State with thriving and happy homes.” It was the farmer who should have secure rights to water. That meant water rights tied to the land.⁵³

Mead urged the farmers to back bills in the Colorado legislature to accomplish that, to limit canal companies to charging fees to cover canal construction and maintenance, and to create a state board to supervise and authorize water use. The key bills failed. A year later, Mead was in Cheyenne, ready to put his ideas into action there. Speakers at the eventual constitutional convention backed Mead in spotlighting the threat of water monopoly and decrying pure prior appropriation, advocating state water ownership and supervision to keep prior appropriation in bounds.⁵⁴

In the water law he wrote for Wyoming after adoption of the new state constitution, Mead proudly blocked sales of water rights apart from the land it served. It was a substantial change from standard prior appropriation law, and he made it integral to his new process of state supervision. He believed that it underlined what state ownership meant: while the state would grant some rights to water to individual users, it retained rights he believed would serve the general welfare on behalf of the public. The society was best served by tying water rights to land so the people who farmed the land held the rights to use the water. Looking back a dozen years later, Mead said that in adopting the statutes he had drafted, the Wyoming legislature had “in effect abandoned the doctrine of appropriation, although retaining the word in their statutes.”⁵⁵

Prohibiting sales of water rights away from the land “is opposed to the decisions of the Courts of other arid States,” Mead told readers of his early reports as state engineer, because Wyoming had adopted “entirely different laws” from other states. Under Wyoming’s laws, a water right must include the exact legal description of the land, with an amount of water usually determined by a state standard for how much water was needed per acre. That created a right to use water only for a specific beneficial purpose, Mead told readers, and that right could not be sold separate from the land.⁵⁶ He continued:

There is no question but what absolute ownership would be more valuable to the individual securing control of the stream than the right to use the water for beneficial purposes, but we have never believed that the purpose of the State in assuming control of the water supply and protecting appropriators in its use was for the purpose of conferring a valuable property right on individuals to the exclusion of the rights of the public.⁵⁷

Wyoming state engineers remained equally proud of Mead’s effort to block sales of water rights apart from the land. Fifty years later, the Wyoming State Engineer’s Office reprinted in its regular report to the state the speech Mead had made to the farmers in Colorado in 1887. For all its passion of a time long past, that speech remained the best answer to “why water is tied to the land in Wyoming,” the state engineer of 1942 wrote.⁵⁸

For administration and supervision of water rights by the state, Mead set up two key features. First, the only private rights to use water would be rights examined and permitted by the state. Nobody could obtain a private right to use water just by staking a claim to some water and building a ditch. For a new right, a state permit was required before any work was done; an application had to be filed to give notice of intent to use water, the application would be reviewed, and sometimes it would be returned for improvements or denied. Water claims that predated statehood, meanwhile, would be examined and would be recognized as a water right only for the amounts of water actually in use. All water rights approved by the state were to be strictly defined by the use to which the water was applied. Every water right would include restrictions as to how much water could be used and where. Irrigation rights must include an exact legal description of the lands to be watered.⁵⁹

Second, water rights would be the domain of an expert state staff, not courts and judges. Only experts could make state ownership of water active in the way Mead intended. They would be empowered to measure, delineate, and establish water rights. They would be the Progressive Era ideal—a cadre of experts dedicated to public service.⁶⁰

The combination of those key features, Mead believed, would ensure that his system would always serve the needs of the society, however those needs might change. Time tended to bring new and competing demands for water, as seen in California and Colorado. Change might be inevitable, but Mead believed economic transition in the West had been made particularly difficult by legal acceptance of private property rights to water, “rights” established by people on their own without public supervision. An active doctrine of state ownership granting and defining private rights to use water could instead promote stable societies where the emergent law of private property in water failed.⁶¹

The expert staff would actively measure and record existing water rights and issue new water permits where water was available and water use proposals were feasible. The permits would have their own deadlines for getting water put into use. The state engineer would determine what was a beneficial use deserving of protection. New beneficial uses might develop over time, and the state engineer could recognize them. The engineer also set a “duty of water,” the amount of water to be accepted as necessary to irrigate one acre in Wyoming. “Excess decrees” that were based by the courts on mere ditch size would disappear. No waste of water would be countenanced. Use of water on lands other than those originally intended and permitted would not be allowed. Diversion was not required, though it was assumed in the water right application form. Only rights to water kept in use would be protected. Non-use would lead to loss of the right.⁶²

The experts running such a system would be “practical men” who knew the rivers, the land, and the problems of irrigation. The water superintendents would not wait for water disputes to arise. To create order among claims dating from territorial days, they would review and measure water supply and use in an entire watershed in a “stream adjudication.” They were armed with the power of the state to create, for the first time in Wyoming, a list of water rights recognized and protected on each stream for the purpose of maintaining order in water-short times. They could require every claimant to submit to the state process of determining their rights. In low-water years, officials would divide up water according to the lists of rights with their priority dates and keep the peace on the streams. With water right lists updated over time with new rights, water use could continue in orderly fashion as the society dependent on water grew and changed.⁶³

The superintendents working from practical experience would not be hobbled by traditional legal training in property rights. They could adopt the concept of state ownership of water and its limits on private rights in a way the courts probably could not. And water users would not have to hire lawyers to deal with water rights questions; they could explain their cases themselves to the water supervisors.⁶⁴

Mead adopted the system that Powell had unsuccessfully recommended to Congress ten years earlier—management based on watersheds rather than political dividing lines. There would be four superintendents, each based in one of the state’s four major river basins (roughly, their four divisions comprise the basins of the Platte River, the Powder River, the Wind-Big Horn River, and the Green, Snake, Salt, and Bear Rivers). Mead’s focus was on surface water; groundwater received attention only sixty years later and eventually became a significant use only in limited areas.⁶⁵

Fundamental state ownership and controls would, in Mead’s view, ensure that people who could put water to use would be secure in their water rights. There could also, however, be a peaceful rollover of water rights between old and new water uses and users—between old and new economies. Water unneeded for current actual use, or water left unused when an old irrigation scheme or an old industry failed, would be available to the next person who could successfully put it to use. A new project could get a new permit to use water on lands where an old project failed. Mead projected that eventually, instead of issuing “perpetual rights” to water, the state would lease water rights, with a rental fee, to individuals for several decades and have a chance to review the use when the lease term ended. But for that favorite idea of his, he conceded that in 1890s Wyoming, “it is probably too early to seriously consider its adoption.” Mead also expected growth in towns and cities, providing in constitutional language that they could acquire irrigated lands and put the water to urban use. Water law so designed could offer western states a flexible stability. Future growth in the West, Mead said, would depend on establishment of a straightforward system like the one he planned for Wyoming to determine, limit, and protect rights to use water.⁶⁶

Mead arrived in Wyoming with all these ideas, but first he had to deal with the mess at hand.

Wyoming water law at the time reflected a bare twenty years of Wyoming’s life as a territory—underpopulated and undeveloped. Water use had demanded little serious attention until just a few years earlier. The resources of interest were the grasses of what seemed endless ranges and some coal that could be mined to fuel the railroads carrying people across the “Great American Desert” to the fertile lands of California and Oregon.

As people who had lived and hunted in the land that became Wyoming were killed or forced onto reservations, the buffalo herds in Wyoming were slaughtered, both as a military objective and as a commercial venture for hides. The grazing land was empty. It was called “open range”—federal land open for anyone’s use. The great advantage of these ranges was that typically, despite sometimes fierce winter weather, there were bouts of warmer winds, known as chinooks. Those winds blew enough snow away that cattle could find food and fend for themselves all winter. And the grass growing in such tough terrain was high in protein and very nutritious. The buffalo had thrived on it, and now so could the cattle and sheep.⁶⁷

As economists might analyze it now, both the water in the streams and the great grazing ranges of Wyoming were “common pool” resources: hard to limit to only a few users yet easily reduced or even destroyed if users piled on. Such resources can be governed well and last for centuries by several means: by public management, private management, or by a group of people who work together to control overall access as well as each other’s uses of the resource they hold together as common property. There are examples of all three kinds of successful management and many in-between combination versions around the world and through history. Grazing lands are among the natural resources that can be managed well under a system of common property.⁶⁸

In case of the great expanses of Wyoming, there was some attempt at joint management of grazing herds. The men and women who brought cattle and sheep into these ranges were at first relatively few, and they created a way to manage their herds among themselves. Their joint management efforts were the famous “roundups” where cowboys from different outfits joined forces to gather and sort cattle after the long winters. But more people could and did come on the ranges—the prospect of free grass was hard to resist, for everyone from Civil War veterans to Scottish investors—and the roundups became almost the only moment of joint management. The open range became a land not of joint management but of what economists call “open access.” Nominally owned and run by the government in the name of the public, the range was in fact not managed at all and so was left open to any comer, with no limits on use. As a Wyoming cattleman bemoaned in 1902, after some thirty years working on the open range, “What is everybody’s is nobody’s.”⁶⁹ Such places—with rich resources unmanaged by any system—are indeed almost always, and everywhere, an invitation to disaster.⁷⁰

Before the Civil War, the lands of a future Wyoming were crossed by Europeans first in the fur trade and then on emigrant and gold rush trails—for people going elsewhere. A few chose to try to settle in river and creek valleys. With the completion of the transcontinental railroad after the war ended, more settlement was possible, and towns built along the railway grew, as did a few small farms and livestock operations nearby. Making use of the preemption laws, those few settlers ventured into small valleys, growing gardens, getting water to their livestock, moving water here and there. The first territorial water law, in 1875, declared that landowners along a stream had a (riparian) right to draw water from it—but so did others farther away. It then focused on the problems of how someone at a distance from a stream could convey that water to his land—condemning, if necessary, the route for the ditch he needed to build across a neighbor’s place. Further, in water-short time, the law said, a local board should be appointed to divvy up supplies fairly.⁷¹

As the 1870s wore on into the 1880s, a bubble of “range cattle industry” boom briefly overtook the new territory. Cattle companies fueled by distant investors temporarily dominated a place of formerly slow-growth, small-ranch, and homestead settlement. Congress in faraway Washington cast about for ways to encourage settler ownership of the public lands, following up the homestead idea with other measures like the 1877 Desert Land Act intended to be more suitable for high, dry areas like Wyoming. Significantly, that act specifically authorized taking water from a stream and moving it elsewhere, a death blow to riparian water law in the West. The new law gave people the right to claim and receive title to more acreage than the homestead law did—if they brought water to it. No one was required to live on the land while trying to get water to it, and that encouraged the use of “dummy entry-men” who would sign up for the land without ever seeing it and convey the title to a backer. Across the West, many a stockman—like Mead’s future patron Francis Warren—used dummy entry-men and had a web of useless ditches dug if necessary, just to claim land under federal land law. Their claims spread in patterns simply snaking along the key stretches of streams where they could water livestock. The company Warren and other top stock growers had formed also experimented in investing in irrigation projects that might turn out to be the real thing.⁷²

In 1886–1887, the invited disaster arrived. On the ranges overstocked by eager companies, a brutal winter followed a summer of drought. The winter made itself famous far across the northern plains. Charlie Russell, a cowboy in Montana, made his celebrated drawing of a wasted steer in the snow surrounded by coyotes, “Waiting for a Chinook, the last of 5,000.” In much of Wyoming, substantial sections of herds and fortunes were lost. Banks failed. For western Wyoming, the terrible winter came two years later—and became known as the “Equalizer Winter” for decimating the herds of small and large cattlemen alike (Warren, in a partnership on the Green River, was one of the latter).⁷³

Those winters signaled (though not all could see it) the end of the open-range cattle industry. Stockmen reacted with often desperate efforts to exercise control of the ranges, with illegal fences on public land and violence toward ex-cowboys or new settlers who started up small herds of their own. After 1888, the smaller ranches and farms, whose numbers had kept growing around and among the temporary burst of livestock barons, kept steadily building. The era of domination by the big operations was over.⁷⁴

In 1888, the recent deadly winter combined with a new, Democratic administration in Washington to make Wyoming stockmen uniquely interested in a state-run system to provide certainty in water rights. Now painfully aware that they had to raise hay for their cattle, they had already enmeshed themselves in machinations to ensure that, despite federal investigations and claim cancellations, they would own the land under their ranch headquarters and irrigable hayfields, while their livestock still grazed the public lands in summer. Hiring a bright young engineer to create a local system of secure water rights for their lands, protected by state law, seemed an obvious next step.⁷⁵

Smaller ranchers and farmers meanwhile had embraced the idea of growing hay for winter feed, and they too saw the need to protect their access to water with legal water rights. The number of water rights people set out to claim in the decade of 1880–1889 was more than seven times larger than the claims made in the decade before.⁷⁶

Given the prospect of real demand for water—and, therefore, real competition over it—the territorial legislature had begun to write more water law. In 1886, the legislature had set up a self-help system for allocating water and keeping the peace in dry times. People who claimed to own water were told to file their claim in the local court, which would sort out disputes (based largely on the size and date of the ditch built). Upon request of the irrigators, a water commissioner in each major drainage would divvy up water in dry times based on filings at the courthouse and any court rulings. In 1887, water users were required to install measuring devices, and the job of territorial engineer—Mead’s future post—was created to measure streams and ditches, give technical advice to water commissioners, and (the part that appealed to him) recommend new water law. The moment of change to a different economy and society, when small ranch and farm operations with irrigated lands were increasing, was the moment Mead arrived.⁷⁷

In many places in Wyoming, people were laboring to plan and dig a ditch and attempting to level-out rough land so ditch water could flood across it—all with only a mule and scraper for help. At the far-flung county seats, poring over the files of claims that were supposed to identify and protect those people’s right to water, Mead was appalled and bemused by what he found. He compiled lists of the water claims, including some that were both enthusiastic and imaginative.

“The first thing that was manifest was that the virtue of self-denial had not been conspicuous on the part of claimants,” Mead recalled as an old man. “If the amount of water claimed had existed, Wyoming would have been a lake.”⁷⁸

One man had claimed the right to take, from one river, sixty thousand cubic feet per second—more than all the water in all the rivers in Wyoming, as Mead pointed out. Meanwhile, “the ditch to divert this volume is just two feet wide and six inches deep.”⁷⁹

Conflicts in court based on such filings resulted in disastrous rulings. The district court in Cheyenne in the 1880s, for example, had arrived at a fantastic and potentially destructive result. Addressing the claims of little more than 10 percent of the water users on one creek, the court gave some irrigators twenty times as much water per acre of land as others got. In several instances, the court granted the water directly to individuals to use as they might like, rather than tying the water right to either ditch or land.

Mead was expected to enforce the decree after he arrived. When it came time to do so, Mead told the judge that the irrigators would lynch him if he did. The judge promised to jail Mead if he didn’t. In the end, Mead managed to avoid both noose and jail—but only by investigating and making his own list of irrigators and water uses on the stream and getting all the irrigators to agree to it. Then, he invoked the aid of the territorial attorney general to sidestep the court decree.⁸⁰

In the confusion besetting water rights, there was nothing to stop—and everything to invite—speculators in water claims who would exploit the people who actually wanted to put water to work. Mead argued to the Wyoming readers of his reports, and to the patrons who brought him to the territory, that his plans for active state ownership of water would avoid such exploitation and promote real development. Wyoming could become, Mead said, what it promised to be but was still short of in 1890: a place of stable irrigated agriculture, a state of towns with schools and churches, the home of communities.⁸¹

That promised to come with statehood, the goal Mead’s patron Warren had been working toward in recent years. When the constitution was written for the new state, Mead wrote his water management ideas into the constitution with the help of Warren and his allies, including the leading law firm in Cheyenne.⁸²

The constitution read then and reads now:

Water being essential to industrial prosperity, of limited amount and easy of diversion from its natural channels, its control must be in the State, which, in providing for its use, shall equally guard all the various interests involved.⁸³

The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.⁸⁴

Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests.⁸⁵

Right along with that, the state engineer and the Board of Control were enshrined in the constitution too.⁸⁶

Everything Mead wanted followed from the constitutional provisions. People could get a right to use water, but it was a right limited by the constitutional premise that the real owner of the water was the people of Wyoming.⁸⁷

Contemporaries offered the best summation of Mead’s system. “Radical change . . . it reverses the present system,” said Charles Burritt, describing the water plan to the constitutional convention. He saw that as a good thing. A lawyer with a blue-blood education, Burritt was the lead spokesman in the convention debates for the new constitutional language on water. Radical change, Burritt said, was exactly what was needed—the “present system” was a disaster.⁸⁸

Burritt was also mayor of Buffalo (and one of the backers of the diversion from Clear Creek to French Creek). There were plenty of people in that part of the state who agreed with him that Mead’s system was radical change. They did not think, however, that it was change for the better. There were many who were astounded to have the state suddenly claim the right to review and restrict how much water they could use, and when. They had their rights, attested to by their old water filings, and they expected to go file on more water—whenever they wanted it.

The opposition was vocal and active. The first time Mead denied a water permit, he remembered years later, “handbills were distributed in Cheyenne, which had the lurid heading, ‘Do you want to live under a czar?’”⁸⁹

Mead understood. “Those early irrigators had built their ditches and diverted water without having to ask the consent of anyone,” he recalled much later:

They had taken and used streams just as they used the grass on the public range, and they fought control of the stream just as they fought all leasing laws for the governing of the range.

They looked on their water right as they did on a homestead filing, and they thought the claim which they had recorded [the water claims filed in county courts under the old territorial law] gave them a title to the amount of water stated in the claim.

The idea of absolute right to the water claimed went even further. They looked on the stream as they did on the air, as something to be enjoyed without any limitation from a public authority, and to be taken just as they shot game or caught fish.⁹⁰

Mead traveled hundreds of miles around the state to explain his new system in person. Forty years later, farmers in Hyattville, a tiny settlement on the western slope of the Big Horns, some four hundred miles northwest of Cheyenne, wrote him a tribute memorializing his visit to preach the virtues of the state water system. “We [re]call those days when with team and wagon you visited our ranches and taught us the ‘Mead doctrine’ of water rights. Your contribution to our state is an obligation which we can never repay,” the Big Horn Basin Pioneers Club wrote to him in 1930, inviting him to their picnic that summer. (Mead was then commissioner of the US Bureau of Reclamation and immersed in plans for what became Hoover Dam. But he went to Hyattville for the picnic.)⁹¹ Remembering those wagon trip days, Mead said, “I became the voice of John crying in the wilderness for a more adequate public control.”⁹²

Mead’s superintendents, dispersed among the four major drainage divisions of the state, were on the front lines. They regularly reported to him the resistance and resentment they encountered. Opponents recognized the new system for what it was: an assault on the concept of absolute private property rights. They said it violated the US Constitution’s protection of private property.

By the mid-1890s, superintendents were yearning for a court ruling to settle the question, yes or no. The decisive court challenge came finally in Buffalo—which, in its way, was the natural, and perfect, setting.⁹³

Buffalo, and Johnson County surrounding it, epitomized the volatility of Wyoming in the early 1890s. The open range stockmen were frustrated by their inability to manage the grazing lands for their own use, even as they tried to reorder their reduced operations in light of the grim losses that had bankrupted so many of their fellows after the bad winter just five years earlier. Around them, new small ranches, some of them run by former company cowboys, were steadily increasing. Conflict between the waning old and the waxing new worlds exploded in 1892, just south of Buffalo.⁹⁴

It was less than two years since Wyoming had won statehood and celebrated the prospects for “joy, wealth, prosperity” and the coming of the science and art of civilization, as the poet of the day had put it. Leading Wyoming stockmen pulled together a trainload of gunmen from Texas plus some locals and sent them north. Switching to horses and heading to Johnson County, the group trapped and shot down two men who were described variously (depending on the source) as rustlers or as small settlers. As was revealed later, these two were only the first on a list of people in the area that the stockmen considered rustlers and had marked for death. Ultimately, however, the “invaders,” as the stock-growers’ force was popularly called, wound up besieged by enraged citizens from Buffalo. The gunmen, who had certainly never expected to find themselves surrounded by a citizens’ militia, made it out alive only with the aid of the US Army sent by President Benjamin Harrison. Warren, with friends among those who had organized the assault on Johnson County, was fortunate to be out of the invader action, being in Washington as one of the new state’s US senators. But he woke President Harrison in the middle of the night to order in the army, rescue the besieged gunmen, and quell what was called the Johnson County War.⁹⁵

The blazing guns in Johnson County spotlighted a West-wide situation that a Public Lands Commission appointed by President Theodore Roosevelt a dozen years later analyzed this way:

At present the vacant public lands are theoretically open commons, free to all citizens; but as a matter of fact a large proportion have been parceled out by more or less definite compacts or agreements among the various interests. These tacit agreements are continually being violated. Violence and homicide frequently follow, after which new adjustments are made and matters quiet down for a time . . . but an agreement made to-day may be broken to-morrow by changing conditions of shifting interests.⁹⁶

The commission also pointed out the results for the once-fabled land of free grass: “The general lack of control in the use of public grazing lands has resulted, naturally and inevitably, in overgrazing and the ruin of millions of acres of otherwise valuable grazing territory.”⁹⁷ The commission recommended a remedy—federal management of grazing via a leasing system—that took thirty years to be enacted.⁹⁸

Once the invaders had been arrested, Johnson County leapt into a murder prosecution against the Wyoming cattlemen and the Texas gunmen they’d brought with them. Warren’s right-hand man in Cheyenne, Willis Van Devanter, a hard-nosed attorney, the Republican party chairman, and a Mead ally getting the water language into the constitution, went to work. He engaged in skillful maneuvering that, combined with the county’s poor finances, ultimately led the Johnson County attorney to drop the prosecution in disappointment. Warren later managed to get Van Devanter appointed to the US Supreme Court.⁹⁹

Wyoming voters, however, did not hesitate to convict. Voter anger at the failing big stockmen’s view of economic justice was eloquently expressed in the statewide elections that followed that fall of 1892. Warren was up for reelection to the US Senate. The uproar of the votes against his Republican party resulted in a legislative deadlock (at the time, legislatures elected US senators). Warren was temporarily stripped of his Senate seat—the only interruption in what became a thirty-eight-year Senate career.¹⁰⁰

Buffalo was, to say the least, not likely to be friendly to Republican initiatives from Cheyenne. Even before the invasion, in fact, Johnson County had barely approved the new constitution. Neighboring Sheridan County, to the north, had flat rejected it. Burritt, the lawyer mayor of Buffalo who had backed the water provision in the constitutional convention, acted as a confidential informer for Van Devanter and other lawyers for the invaders, betraying details of the county’s strategy and its difficulties in prosecution of the faltering murder case. Though Burritt’s letters were confidential, people in the county likely suspected his true allegiance. As Burritt wrote to Warren in understatement, in the aftermath of the invasion, stockmen supporters like himself had to keep quiet in Johnson County.¹⁰¹

Mead, his system, and the water language in the new constitution were undeniably associated with Republicans, stock-growers, and government from faraway Cheyenne, where for the most part the stockmen had held sway. Mead was like early progressives elsewhere in the United States: he had not hesitated to ally himself with those “big business” interests to accomplish what he wanted for planning and efficiency. In the 1890s, Mead joined Warren in first urging the cession of federal lands to the state. When that failed, he ultimately joined Warren in promoting the leasing of rangeland. He saw it as helping livestock ranches become stock farms, which he saw as Wyoming’s future—ranches where privately held irrigated bottom lands would be associated with grazing leases on nearby federal ranges. That pattern, already in the making, was as friendly to the small settlers as it was to larger ranches. Grazing leases, however, were initially anathema to would-be small settlers, who saw the high plains as places to be farmed and believed that both federal land cession to the states and leasing proposals were plots by big stockmen to lock up the public land for their own use. In the early decades of the twentieth century, small settlers established “dry farming” homesteads on the grasslands, particularly in the eastern part of the state, after the best lands in the valleys had been settled. Some of those homesteads failed quickly, but many persisted into the 1930s.¹⁰²

Mead had started to put his water system into action just a little over a year before the invaders went into Johnson County. The legislature passed enabling legislation in 1891. Mead appointed the water superintendents and set them to work on stream adjudications across the state to provide expert review of water claims and determine what water rights should be protected and listed. It sounded fine. But it was a Herculean task. Mead’s reports of the 1890s bulge with the detail of stream-by-stream adjudications, along with data from the streams measured, and the permits issued, by his tiny staff. The vault at the engineer’s office still has on file the stacks of postcards certifying that the superintendents had notified each water user of upcoming adjudication hearings. (Sometimes today, people who dream of challenging those original adjudications come in to check the postcards.)¹⁰³

The adjudications were a significant means of preaching, stream by stream, the value of the state system in fostering orderly water use and water-using communities. Starting with the very first adjudication, Mead noted, irrigators resisted the idea of being restricted to only the amount of water they actually put to use. But then they got the chance to examine the engineers’ official measurements of how much water was available in the stream, and they could look through the compilations of claims filed over the years in county courthouses. After that, they stopped resisting, realizing that if everyone’s exorbitant claims for water rights were not cut down to actual use, there would be water enough for only the first few claims on the stream.¹⁰⁴

Mead launched an adjudication in Buffalo as he did all over the state. Then he hit an awkward stumbling block: his first water superintendent joined the invaders in the Johnson County War. Right there was the evidence, for anyone who had doubted it, that Mead’s system was part and parcel of the program of the invaders.¹⁰⁵

After the invasion, Mead had to start over in Buffalo. When the superintendent had joined the invaders, he lost all the records of the adjudication hearings. The proofs of water use had to be retaken. To finish the job, Mead looked for new people. He ran through one short-timer and eventually, in 1895, named as water superintendent the popular young railroad engineer Edward Gillette. Gillette stayed on the job supervising water and promoting the state water system in northeast Wyoming—with remarkable success—for the next five years.¹⁰⁶ When Gillette became superintendent of Water Division II, it was just five years since he had first led a railroad survey crew into Wyoming from the Black Hills. In that short time, however, he had acquired some significant political connections that could aid Mead’s cause.

The girl Gillette married in Sheridan was Hallie Coffeen, daughter of the most prominent man in town. Her father was, in fact, the man who was elected to Congress as a Democrat on an anti-stock-industry platform in the fall 1892 election. Henry Coffeen was a former college teacher from the Midwest who, once he had landed in Sheridan, had become a merchant and an early irrigator, a member of Wyoming’s constitutional convention, and a supporter of the Knights of Labor. A major street in Sheridan is still named after him. As a statewide politician in Wyoming, he turned out to be short of judgment and staying power. By the time Mead appointed Coffeen’s son-in-law Gillette to the water superintendent’s job, Congressman Coffeen had lost his bid for a second term. One reason was that he blunderingly prompted the army to close the fort that had been Buffalo’s bread and butter.¹⁰⁷

Despite Coffeen’s problematic congressional record, Gillette’s job was probably easier in disaffected northeast Wyoming because he had a Democratic father-in-law. Certainly, that would distance him from the image of a water superintendent who joined the invaders. Gillette also had his own solid reputation as the man who brought the railroad to the Powder River basin and to Sheridan (to Buffalo’s disappointment, the violence and turmoil of the invasion had led his railroad managers to bypass that town).

Gillette himself was known to be cool headed and competent. He became a trusted lieutenant for Mead. They agreed on what the community benefits of irrigation could be. Some twenty years later, after having done a stint as Wyoming’s state treasurer and run a private engineering practice of his own, Gillette helped Mead again, with inspections and critiques of federal irrigation projects in Wyoming.¹⁰⁸

Gillette took his seat as superintendent of Division II on Mead’s Board of Control in time to finish, in early 1895, the adjudication proceedings in Buffalo. He proved himself an excellent superintendent for northeast Wyoming, not only in the details of the adjudication he finalized but in the way he implemented the results of that adjudication.

In Buffalo, relations between people using water—like those on French Creek and Clear Creek—had become strained in the years after the town was founded. In 1889, some had gone to court to sort out water rights. It had been a dry year in Johnson County, and the town of Buffalo particularly suffered as upstream diverters took advantage of their position on the stream to take what they needed. The court case started up but was interrupted by statehood and the new constitutional provisions. Given what the constitution of the new state said, the local judge ruled that the state water administrators should take over the case.

What with the new state law being written and then the water superintendent joining the invaders, it took several years before state law could be applied to determine water right priorities around Buffalo. Moreover, it was a complicated job. On French Creek, for example, by 1894, it was not easy to delineate the water sources supporting irrigation in the valley. Was a certain field, for instance, irrigated by water natural to French Creek or by water diverted from Clear Creek? A state official would have to trust irrigators as to the source and then measure the rights by examining the irrigated land.

In the end, Gillette finalized adjudications around Buffalo in fall 1894 and spring 1895, enforcing them in the 1895 irrigation season. But he made tough rulings. On Clear Creek, for instance, Gillette decided he could certify water rights to only about 10 percent of the volume of water that most people in the Buffalo area had claimed. Meanwhile, 1895 and 1896 were dry years.¹⁰⁹

French Creek ranchers chafed at an adjudication awarding them rights to less water than they had claimed. But they found in the end that their survival was ensured by receiving rights to and protection for the amount of water they had been using. The adjudication confirmed the crucial priorities. It officially listed the French Creek ranches’ rights to divert from Clear Creek with a priority date just ahead of the cattle company’s big diversion. The actual amount of water they had used, to which French Creek ranchers now had a right officially affirmed by the state, turned out to be enough to support their valley through all the changes of the next century.¹¹⁰

Meanwhile, by imposing a limit on the upstream claims on Clear Creek, the adjudication also seems to have aided the water supply situation of the town of Buffalo. Overall, the adjudication had arrived at a workable accommodation in water rights, which allowed the town and its surrounding ranches to survive and grow. The ranches on French Creek enjoyed workable amounts of water over the next century, even in dry years, to operate satisfactorily.¹¹¹

Water users up and down the stream, Gillette found, saw the value of the new adjudication. He had been surprised and much relieved to find that it was the irrigators along the streams who mutually enforced the new state adjudication, because they saw it as “the only just solution of the problem.” The irrigators, not part-time water commissioners alone, kept water users within the limits of their appropriations and thereby made it possible for most appropriators to use enough water to sustain their operations.¹¹²

Old conflicts and attempts to speculate in water had been virtually eliminated, Gillette wrote. In the Buffalo area as elsewhere, more recent appropriators had typically suffered from the actions of some of the earlier water claimants who wasted water, extended it to new lands, or loaned or sold it to someone—all for their own profit and at others’ expense under their claim to “prior appropriation rights.” Now, Gillette said, the water rights list implemented under state law allowed water commissioners and vigilant neighbors to limit early appropriators to the water that had been used, on the land for which the water was originally appropriated.¹¹³

The ban on transfers of water rights to different lands “is simply the salvation of later rights, and checks in a measure the vast advantage which the earliest rights on a stream possess,” Gillette wrote. Anyone who used water on lands not described for that water right wound up with only a new water right with a later, junior date—and did not dare to object. “In times when water was extremely scarce,” Gillette reported, “there has been such an intense feeling among his neighbors against such misapplication of water . . . that no other determination would long be tolerated by his neighbors.”¹¹⁴

No one in Buffalo, then, seriously challenged Gillette’s adjudication. Yet one entity from elsewhere did: a mortgage company from Colorado. The company objected to Gillette’s adjudication and went to court over it, launching a challenge to Mead’s new water system that went directly to the Wyoming Supreme Court.

The mortgage company was called the Farm Investment Co., based in Fort Collins, where Mead had started his western career. When the financial panic of 1893 rocked the nation with bank and railroad failures, agricultural prices also hit bottom, and dispossessed people marched on Washington. Buffalo had seen hard times then too, and Farm Investment had picked up several properties there by foreclosure. In the subsequent Buffalo water rights adjudication, the company successfully proved water use for the water rights accompanying several foreclosed-on properties, and rights for the amount of water used on those lands were recognized in Gillette’s adjudication.¹¹⁵

But the company had one property, with an 1879 water claim on French Creek, for which it had offered Gillette no proof of water use. Possibly, the company feared that scrutiny would show the water hadn’t been used. Not surprisingly, Gillette did not list that claim in the final order of the Buffalo adjudication listing certified water rights in priority.¹¹⁶

After a few years, Farm Investment could see what the adjudication meant in action. Company officials didn’t like what they saw. In 1899, Farm Investment sued to stop the use of water on French Creek in the manner set by Gillette’s adjudication. The company, in fact, sued a long list of people on French Creek, including everyone from the operator of the first general store to the widow of the former fort commander. One of those defendants was John Fischer, a native Bavarian who had started Buffalo’s first brewery with locally grown barley to serve thirsty soldiers from the fort. Fischer’s land and water right served the only ranch still making a living through cattle on French Creek a hundred years later, in the 1990s.

Farm Investment’s lawyers challenged water use by all the French Creek users via a wholesale attack on Wyoming’s new water system. The company used all the arguments and epithets likely standard for years among opponents of Mead’s new water law. Farm Investment, like modern “property rights” groups, charged the state government with violating the Fifth Amendment. Mead’s system, Farm Investment claimed, violated the Fifth Amendment’s prohibition on the taking of private property for public use without just compensation. So the Wyoming courts, as the twentieth century came on, had to answer, for their own time, the familiar question: When is regulation of private property for the public good a “taking” of property—a serious invasion of private rights that the public must pay for?

In 1899 Wyoming, Farm Investment thought the answer to that question was clear. The company portrayed itself as flabbergasted to see a potentially valuable 1879 water right effectively disappear. A preexisting property right could not be wiped out merely because its owner did not come forward to participate in some new state system for listing rights, the company argued. The Wyoming water system improperly sought to have engineers be “invested with . . . the absolute control over the most valuable property interest in the state,” the company’s lawyers argued.¹¹⁷

Mead’s new system was a bold-faced effort “to take away private property without due process of law,” a piece of obviously unconstitutional retroactive legislation, the company charged. The system’s limits on water rights, tied to actual use and actual measurements, were an attempt—“under the assertion of state ownership of the waters within the state”—to provide for “almost denial of property rights in appropriations of water.” The purpose of the engineers’ plan was “not to regulate, but to destroy. It therefore cannot be sustained, so far as it operates to defeat vested rights,” the company said.¹¹⁸

Mead’s plan was “an ingenious combination of provisions supposed to be adapted for the advancement of an enlightened public policy” but fatally “intermixed with others in conflict with the fundamental law and constitutional principles,” the lawyers wrote.¹¹⁹ The new water laws marked a change from prior appropriation law in the rest of the West, “developed by the experience of half a century.” It should and no doubt would, the company’s lawyers said, suffer the fate of other sets of statutes that attempt to depart from popular custom; such efforts are “but the invention of the theorist . . . a proposal to try an experiment which is generally rejected on the trial.”¹²⁰

Farm Investment was confident in the dedication of nineteenth century US courts to the sanctity of property rights. The company had not reckoned, however, with the man leading the Wyoming Supreme Court, and his dedication to Mead’s new concept for water.

Charles Potter, chief justice of the Wyoming Supreme Court, was no stranger to Mead’s ideas. Only six years older than Mead but an 1870s transplant to Wyoming, Potter had been a constitutional convention delegate and a partner in Van Devanter’s prominent Cheyenne firm. As such, he was privy to the legal thinking of one of Mead’s prime allies in promoting the new water language for Wyoming. After adoption of the constitution, Potter had become first the attorney general and then a Supreme Court justice for the new state.

When the Farm Investment case came to him, Potter was in full swing in what would become a thirty-year career on the state’s high court. A good portion of his career was, in turn, a thirty-year effort to interpret and implement Wyoming’s unique water system. Potter had seen the territorial conditions that had prompted the effort to write new water law, and he knew Mead’s philosophy and the goals of the new system. He embraced both. In opinions written in a long series of cases, he excelled at defending, explaining, and firmly establishing the water system. On only one occasion did he deviate notably from Mead’s views. After his death, it became painfully clear that the Wyoming Supreme Court had lost its link to the philosophical foundations of the state’s water law. Increasingly in water cases, starting in about the 1930s, the court drew on traditions of land law that Mead had sought to avoid.

In the 1890s, however, Potter set the course to support Mead’s system. In 1896, in one of the first water cases to come before him, Potter had already laid the groundwork for defeating any challenge to the new structure. He made this initial case an occasion for broadly endorsing the idea that in Wyoming, water law could and must be dictated by the necessities of Wyoming society in peculiarly Wyoming terrain.¹²¹

In the face of evidence to the contrary, Potter in 1896 rather boldly announced that unlike other western states such as California, Wyoming had never countenanced the old British concept of water rights, the “riparian” view that rights to water in a river were to be shared among all the owners of land along the river. By that pronouncement, Potter denied a good deal of ambiguity in Wyoming’s past and expelled it from the state’s future. He wrote out of existence both the probable history told by early Wyoming ditches serving riparian lands, and 1875 territorial statutes that had appeared to embrace whatever ideas various Wyoming settlers might have had about water including, for some, the idea that they owned water flowing through their land.¹²²

Potter had good reason to skirt the contradictions of the past. He, like Mead, saw Wyoming’s disadvantage in low levels of population and development as an advantage when it came to adopting better water law. He saw the appeal of a blank slate. And like Mead, Potter was well aware of the litigation and sometimes violent conflict that the recognition of two competing water rights theories had encouraged in California and its neighboring states.

In his library (volumes of which now rest in the basement of the University of Wyoming College of Law), Potter kept a classic treatise on California water law that documented the costly struggles between riparian and prior appropriation water rights. In 1896, when that first Wyoming water case came to his court, the facts of the case were nearly identical to those of a California case, which Potter marked in the margins of the treatise. Potter seized the opportunity then to write a decision, on the same fact situation, countering the California court’s decision. The California courts had given riparian rights consideration. Potter, by contrast, ruled riparian rights out of Wyoming.¹²³

Potter found in 1896 that the “imperative and growing necessities” of irrigation and other water uses in an arid state like Wyoming had required that only prior appropriation be recognized. In language that would serve in later cases to justify the development of Mead’s new system, he emphasized the need and ability of the people of Wyoming to craft law to suit their own place.¹²⁴

California’s experience also inspired Potter, as well as Mead, to make room for public concerns in Wyoming’s new water-law system. J. N. Pomeroy, the distinguished law writer who authored the treatise Potter studied on California water rights, believed that the use of water is, in the dry states of the West, properly a matter of public concern, and water law must recognize that.

Pomeroy argued eloquently that prior appropriation, in the usual practice in the West, did a much poorer job than riparian water law in acknowledging that the proper use of water is and must remain an issue in which a fundamental public interest is involved. He explained that riparian law, built on centuries of experience with the effects of competing demands for water, had a tradition of considering the needs of other people and of the general countryside dependent on a flowing stream. That was the origin of riparian law’s requirement that landowners make “reasonable” water use, Pomeroy wrote. Riparian law treated water as a resource in which everyone had a common interest. Prior appropriation law, by contrast, in its pure form had little concern about the impacts of water use on others, he said. In fact, Pomeroy noted, prior appropriation theory gained popularity in frontier societies—like the early West—partly because it unabashedly allowed a first user to dry up a stream if he could. This potential for the prior appropriation doctrine to encourage a rapacious exploitation of water, early noted by Pomeroy, was later made notorious by twentieth century critics of western US water law. It was one of the problems Mead had sought to correct by writing public ownership into Wyoming’s constitution.¹²⁵

When the Farm Investment Company challenged Wyoming’s new water system in 1899, in Buffalo, Potter had the opportunity to back Mead’s effort—to emphasize and to validate public ownership and public control of water. He seized his chance. His opinion in the case, Farm Investment Co. v. Carpenter, written in 1900, has stood for more than a century as the keystone supporting Wyoming’s system against attacks on its constitutionality. His opinion has been routinely cited, in Wyoming and in other states, whenever a Wyoming-style water-law system came under fire.

In his decision, Potter firmly repulsed two lines of constitutional attack. First, he rejected the company’s argument that Wyoming was improperly taking property rights without compensation by use of the constitution’s pronouncement that water is public property and its subjection of private water filings to state-imposed limits. Next, he rejected a second major constitutional claim the company had put forward, that the legislature had usurped judicial powers by giving the state engineer and his superintendents the authority to adjudicate and determine water rights.

Overall, Potter ruled firmly for the state on the core issue in the case. He upheld the Buffalo adjudication completed under Gillette. He held that the Farm Investment Company’s early-date water claim—so sacred in the eyes of its owner—could indeed be lost if the company refused to participate in the state adjudication system. Potter ruled that if the holder of a water claim dating from Wyoming’s territorial days failed to come forward now, under the state system, and offer proofs of water use, the old claim would have no place on the official state lists of water rights listed in priority. The old filing would have little practical significance.

How?

First and foremost, Potter declared, water is a public resource—not simply because the constitution of Wyoming says so, but because of a long and steady tradition among the people and in the law. The new constitution merely restated that traditional view.

Second, Potter said, the state must have authority to regulate such a public resource. The state must be able to institute proceedings to determine the relative rights of private parties in this public resource—to avoid chaos on the streams. He cited the well-recognized “police power” that government must have to keep the peace. From that he argued that governments can require preexisting rights, as well as new ones, to submit to a reasonable system of listing rights and keeping order among them.

As a result, Potter ruled, a preexisting claim held by an individual or a company like Farm Investment, if that entity fails to participate in the state’s reasonable adjudication procedure, will very properly be left off the new state list of water rights. And the state’s water commissioner, when dividing up waters in times of scarcity, will very properly not allocate any water to that old water claim since it is not on the state list. So as a practical matter, the old right becomes meaningless.

Legally, Potter noted, Farm Investment still had its territorial claim. The legislature hadn’t put into the law any penalty—like forfeiture of a claim—for failure to participate in the state process. Potter carefully declined to read such a penalty into the law. He pointed out that the company could still make a legal claim—that it could, for instance, try in court to sue neighbors for damages when they got water and the company didn’t. Perhaps the company might get money damages. But it wouldn’t get water.

So the company’s legal claim survived, but it had limited practical value. And it did not survive for long, even in that condition. Potter suggested that the legislature might want to write in a penalty, such as forfeiture of a claim, for failure to participate in an adjudication. And Wyoming legislators did so, at their very next opportunity.¹²⁶

Potter laid this all out with some eloquence, but he kept the tone mild rather than impassioned. The art of his opinion was that he managed to give a resounding endorsement to the revolutionary change Mead’s system had brought to Wyoming water but make the system sound not revolutionary at all.

Of course, no one else had seen it that way. The one thing that both sides in the Buffalo water case agreed upon was that Mead’s system was a dramatic departure from any water law in Wyoming’s territorial experience. Not only the Farm Investment Company, on the offensive, but the French Creek ranchers, defending the new law, and even their mayor Burritt, back in the constitutional debates ten years before—they all thought it was radical change. They differed only on whether it was a good thing.

Potter performed quite a tour de force. The chief justice of the new state clearly saw his task as one of solving the problem of how to uphold the new system without putting the court in the position of endorsing drastic (and, as Farm Investment would have it, potentially unconstitutional) change in property rights matters. He accomplished that by portraying Mead’s system as a natural outgrowth of both territorial law in Wyoming, and the theory of prior appropriation itself.

On how water was viewed in mid-1880s Wyoming, as the territory grew toward statehood with small settlers increasingly populating the landscape despite the big range cattlemen, Potter wrote:

The cultivation and even the occupation of the lands within the territory had been attended with the expenditure of much capital and labor, and the very existence of the homes of a large class of citizens, as well as the productiveness of the soil, depended upon the security to be afforded the appropriations of water which had been made; and in view of the many rights already accrued, and the inception of new ones which would necessarily accompany the continued growth of the territory, the welfare of the entire people became deeply concerned in a wise, economical and orderly regulation of the use of the waters of the public streams.¹²⁷

By contrast, one of Potter’s peers in the 1889 constitutional convention—a member, like him, of the convention’s water committee—had characterized territorial water legislation as a worthless hodgepodge:

The legislatures of this territory have attempted to deal with this (water) question, and from time to time demonstrated their ignorance of the whole matter, legislating in one direction at one session, and undoing all their work the next.¹²⁸

That was a somewhat common view of what the territorial legislatures had wrought. Nonetheless, Potter blandly asserted in 1900, in the Farm Investment Co. case, that territorial water law had envisioned an overall goal. That goal, he said, was to protect the economic interest built on water, “give stability to its values, assist in a desirable conservation of the waters, and avoid confusion and difficulty in their distribution.”¹²⁹

Since Wyoming territory began, Potter concluded, in water law, “the significant feature of the changes and additions from time to time has been the principle of centralized public control and regulation.”¹³⁰ He moved right on to quote the water provisions of the constitution of 1889 and the subsequent statutes with their elaborate structure of centralized public control. He saw no need to mention Mead and the labors of 1888–1890, which created the new water law. In sum, the Wyoming Constitution “would seem rather to declare and confirm a principle already existing, than to announce a new one,” Potter declared.¹³¹

He found, remarkably, traditions of public control of water not only in Wyoming’s territorial law but in prior appropriation law itself. That theory, he noted, developed on the public domain and from the needs of the arid country and therefore was based on public ownership of water. “Under the doctrine of prior appropriation, it would seem essential that the property in waters affected by that doctrine should reside in the public. Such waters are, we think, generally regarded as public in character.”¹³²

Moving on again, Potter found that it is appropriate for government to regulate a resource that is “public in character.” Where water supplies are short, the state must exercise its power of public control, regulating who gets water first according to a comprehensive list of rights, in order to allow the proper functioning of individual rights to use water. And just as with deeds to land, where the state can require all transactions, old as well as new, to be recorded publicly in order to ensure valid land transfers, so state water regulators can require all water claims, old as well as new, to submit to the state process of proof and adjudication in an official water rights list. Potter continues:

Where various rights are connected with the same stream or body of water, a subsequent claim cannot be successfully regulated without including, in the regulations, all rights. The water to which the use of each attaches is public, and the people as a whole are intensely interested in its economical, orderly, and inexpensive distribution. It is a matter of public concern that the various diversions shall occur with as little friction as possible, and that there shall be such a reasonable and just use and conservation of the waters as shall redound more greatly to the general welfare, and advance material wealth and prosperity.¹³³

To be effective, the regulators must determine the relative priorities of all the relevant claims, old and new, on a stream. To do otherwise “must result in practical failure, in times when official intervention is most required. In fact, that had been demonstrated under our former system,” Potter declared.¹³⁴

Finally, Potter backed Mead on his choice of whom to put in charge of sorting out these water rights to create the state list. It was properly not the job of the courts but a task for technical experts—the state engineer and his staff:

In the development of the irrigation problem, under the rule of prior appropriation, perplexing questions are continually arising of a technical and practical character. As between an investigation in the courts, and by the board, it would seem that an administrative board, with experience and peculiar knowledge along this particular line can, in the first instance, solve the questions involved with due regard to private and public interests, conduct the requisite investigation, and make the ascertainment of individual rights with greater facility, at less expense to interested parties, and with a larger degree of satisfaction to all concerned. In the opinion of an able law writer upon this subject, the powers of the Board of Control in this respect constitute one of the most praiseworthy features of our legislation.¹³⁵

Here Potter quoted a contemporary writer on water law:

He says, ‘In the State of Wyoming, at least, there will no longer be the ludicrous spectacle of learned judges solemnly decreeing the right to from two to ten times the amount of water flowing in a stream, or in fact amounts so great that the channel of the stream could not possibly carry them, thus practically leaving the questions at stake as unsettled as before.’”¹³⁶

Dedicated to “the principle of centralized public control and regulation”—with Potter’s endorsement of that core concept in 1900—Mead’s water system was solidly enshrined as a distinguishing feature of Wyoming government.

With the principle of active state ownership, administered by a cadre of technical experts, Wyoming’s system could distribute rights to water in a way that both protected and limited those rights. It could, ideally, provide to a growing new society both security and the flexibility to accommodate change.

“The Wyoming system” was the latest thing for water people all around the West. The concept was promoted (by Mead and by others) as a model for other states. Several states did institute some form of the Wyoming system—but few were willing to follow Mead and Potter all the way.

Most states resisted the idea of administrative experts adjudicating water rights. Even when they saw the advantages of taming pure prior appropriation and therefore embraced the ideas of state ownership and state permits for water, most states balked at giving a board of experts the power given to Wyoming’s board to determine and limit private rights. So those states that adopted part of Wyoming’s model typically left out the administrative adjudication of rights. Often, under pressure from lawyers and judges who saw water rights as their business—a matter of property rights, much like rights in land, and therefore the domain of the courts—they declined to adopt that portion of Mead’s ideas.¹³⁷

Potter’s ruling confirming Mead’s system in its entirety, however, authorized Wyoming to pursue its experiment in water management. Key content of the water law, like the tying of water rights to the land, had yet to be tested in practice. The unique authority Mead’s system gave to a board of practical experts to interpret and implement the idea of state ownership of water, however, proved itself a critical factor in the working of the Wyoming experiment.

With Potter’s decision on the Buffalo case, the work of Mead and of his superintendents like Gillette was justified. Their efforts had paid off. Next came the problems of seeing the water system implemented day to day and seeing whether it could go on as it was intended. Dreams of development, and the practical frustrations of trying to make those dreams come true, brought about changes in the original system. Indeed, by the year of the court decree in 1900, those changes were already at work. In 1900, however, what seemed most important was that Potter had affirmed the Buffalo adjudication and thereby validated the idea of public ownership and control of water.

Fred Bond, a Mead lieutenant, called Potter’s decision a “subject for especial congratulation.” By 1900, Bond had become state engineer, since the fame of the new water system had taken Mead to a job in Washington, DC. Bond wrote in his report to the Wyoming people that the question of whether water is publicly or privately owned was now settled in Wyoming, in favor of the public, as was only right. Any further debate on the topic could be relegated to other states “still struggling to reach the high plane occupied by the Wyoming standard,” Bond said.¹³⁸

Gillette, meanwhile, had gotten the most satisfaction from the way Johnson County people had accepted the system long before the Wyoming Supreme Court upheld it.

“It has been somewhat of a revelation to me,” Gillette reported to Wyoming readers back in 1896, “and strengthens me in the opinion that our water laws are exceedingly just and effective, and that more than ordinary care and foresight was used in their framing than our citizens ordinarily appreciate.”¹³⁹