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there was much angry discussion for a time, and which was the occasion, temporarily, of some "bad blood,” but which left matters precisely where they were at the beginning, and which had caused no appreciable harm to the property and none at all to the reputation of any one concerned.
But litigation was by no means at an end. On the same 7th day of January, on which the last-mentioned suit was begun, Morton, Hopkins, and Manners began an action in ejectment in the same court to try the title to the lands in dispute. Counsel engaged in the case were J. R. Hardenbergh and Daniel Gantt, for the plaintiffs, and Seth Robinson, E. E. Brown, and James E. Philpott for the defense. Subsequently the state was admitted to defend by George H. Roberts, who had succeeded Mr. Robinson in the office of attorney general. A trial before Judge George B. Lake and a jury resulted in a verdict and judgment for the defendants, to reverse which a petition in error was prosecuted in the supreme court. The serial or general number of the case in that court was 81. In that court Judge E. Wakeley, of Omaha, also appeared for the plaintiffs.
The judgment of the district court was affirmed in an opinion by Judge Crounse, from which Chief Justice Mason dissented, 2 Nebraska, 441.
The patents although executed, as before stated, and transmitted to the local land office were never delivered to Prey, but were arrested by the commissioner of the general land office, Mr. J. M. Edmunds, as soon as he became informed of the character of the land, and were by his order returned to the department at Washington and canceled. The sole ground of the decision was that, by reason of these circumstances, the legal title had never passed out of the United States to Prey, and that although he might have acquired complete equitable ownership and conveyed it to the plaintiff's, the court was without jurisdiction to adjudge the matter in the common law action of ejectment. The chief justice combatted this decision in an elaborate and characteristically vigorous opinion, in which he maintained that saline lands in Nebraska were not reserved from private sale prior to the passage of the enabling act, and that the lands in suit having been sold before that time, section 11 of that .act, above quoted, not only did not assume to grant them to the state, but by implication ratified and confirmed their previous sale to the plaintiffs or Prey. He further contended that the action of the department of the interior in arresting and cancelling the patents was in excess of authority and void, and that the plaintiffs, having all except the bare legal title, which was a mere shadow, were entitled to maintain their suit, and upon reversal of the judgment of the district court, to have final judgment in their favor rendered in the supreme court. He treated the defendants, the state, and its lessees as in the light of mere trespassers without semblance of right.
Dissatisfied with this decision, the plaintiffs sued out a writ of error from the supreme court of the United States, where counsel for the plaintiffs was Montgomery Blair, and for the defendants were Judge William Lawrence, of Ohio, Judge E. Rockwood Hoar, of Massachusetts, and the Honorable R. H. Bradford. The case was reached and disposed of by an opinion by Justice David Davis, speaking for the whole court, at the October term, 1874, 21 Wallace, 88, U. S. 660. That court wholly ignored the opinions of the state supreme court, both majority and minority, and disposed of the case upon its merits, a somewhat unusual proceeding, because a majority of the state court expressly declined to consider the merits, and rested their decision solely on a question of practice, having reference to their own jurisdiction and that of the trial court in this form of action, and held that neither had any. The state court was certainly competent to determine its own powers and jurisdiction, and it is difficult to understand how the Supreme Court of the United States derived from it a jurisdiction which it did not itself possess. But the latter-named court so determined, holding, after a review of all the congressional legislation relative to the subject, that the springs were reserved from private entry by an act of Congress of July 22, 1854, establishing the office of
surveyor general for the territories of New Mexico, Kansas, and Nebraska, and for that reason affirmed the judgment complained of. The lands were thus finally released from the custody of the law. No further attempt to make use of them for the manufacture of salt has ever been made, but there has been some partly successful efforts to convert the big spring into a pleasure resort.
There was produced on the trial in the district court and included in the bill of exceptions a certified copy of a report of an expert who, by direction of the land department, had been detailed by the United States Surveyor General for Kansas and Nebraska to ascertain the true character of the land in question. It was shown by this document that by careful observation over a long period in the summer of 1862, of the quantity of brine issuing from the large spring, then called the “Chester Basin," and from a personally conducted quantitive and qualitative analysis of it, that there was annually producible by solar evaporation from the surface waters of that spring alone no less than fifty-five hundred tons of, for practical purposes, chemically pure salt, one thousand tons of which could be collected from spontaneous crystallization around the edges of the basin. This quantity would have been equal to two hundred and twenty thousand statutory bushels, and at the royalty reserved in the Tichenor and Green lease, should have yielded the state an annual revenue of four thousand and four hundred dollars. But it was further shown by this report that the quantity of salt obtainable could without difficulty be largely increased by the use of dams and dykes preventing loss by dilution and seepage.
The statement of facts prepared by Mr. Justice Davis for official publication in connection with the decision of the Supreme Court of the United States contained the following statement, substantially repeated in the body of the opinion: “The land in question was palpably saline, so incrusted with salt as to resemble snow covered lakes." It should not be forgotten that there are eleven smaller springs situated in the Great Basin and selected by the governor.
I can not but think that Mr. Samuel L. Clemens is censurably at fault for failure to bring these official representations to the attention of ('olonel Sellers. That the publications of an humble and obscure individual like myself should have failed to attract the notice and arrest the attention of wealthy and prominent men of affairs is not surprising. But Mr. Clemens has for many years put himself forward as a comprehensive and accurate historian of his country, particularly of the West, and his books have been bought and devoured with avidity by a large and ever increasing circle of readers. For thirty years the above recited facts have been spread upon the records, and published in thousands of copies of the official reports, of the highest, most learned, and most dignified, powerful, and important judicial tribunal in the United States, or perhaps in the world, and it can be due to nothing less than the gross and criminal negligence of the writer whom I have named that this immense store of mineral wealth has remained for all this time undeveloped and unproductive, and, it may truthfully be said, undiscovered, at the very gates of our capital city.
EARLY DAYS AT THE SALT BASIN.
BY JOHN S. GREGORYFOR THE ANNUAL MEETING OF THE
STATE HISTORICAL SOCIETY, JANUARY 10–11, 1905.
Galveston, Texas, December 16, 1904. Jay Amos Barrett, Curator:
DEAR SIR-I am in receipt of your kind invitation to appear at your annual meeting of January next, and detail some of the early history of Lancaster county as I may remember it.
1 John Stanford Gregory was born in Brattleboro, Vermont, in 1834. Graduated at Maumee, Ohio, high school. From 1859 to 1861 he was U. S. mail agent. He was admitted to the bar in 1860 and came to the Lincoln Salt Basin, Nebraska, in August, 1862. He built the first salt works there and manufactured salt for several years. He was engaged in real estate and insurance at Lincoln from 1867 to 1891. In 1864 he was a member of the territorial legislature. In 1891 he removed to Galveston, Texas, where he now resides. He was married in 1857 to Mary Elizabeth White.
Nothing would afford me greater pleasure than to be present upon that occasion, and exchange reminiscences with the early settlers of that territory-if any are yet left on earth to meet, but as this is not possible at this time I will contribute my mite in the form of this letter.
I would like to state something to a Historical Society that would be an incident of history, but as nothing occurred in my early day, I can not. I dislike to intrude in this article so much of the pronoun I, but remember that at the first election held in Lancaster county, which was a year later than my first arrival, there were but eleven voters in the county, which was a picnic for office-seekers, for every one could have one. Therefore, if I am to say anything at all, it must involve myself more or less. Of these seventeen, W. W. Cox, of Seward, and myself are the only survivors, so far as I am informed.
I first made my home in what is now Lincoln in the summer of 1862, being the first permanent settler of that city's site. Neighbors in the county were few and far between, but for music we had nightly serenades from hundreds of coyote wolves, who also loved chicken better than traveling ministers or down-south darkies; therefore war was declared against the wolves. Every evening in the winter months we would mount a horse, fasten a piece of fresh meat to a lariat, and draw it over the ground in a circuit of a mile or so, occasionally dropping a small pellet of lard encasing a flake of strychnine. The wolves would take the trail, and sometimes we would gather a dozen of them in the morning. Their pelts paid the cost, and their carcasses were drawn away to the banks of Salt creek, where we expected them to rot in the spring. But a band of Pawnee Indians found them, and never broke camp until the last carcass went into the soup, which we were informed was “heap good for Ingun.”
In 1863 there was quite an influx of temporary citizens from the state of Missouri who came, as they stated, to "get out of the draft” (this was war time, you know) and settled
1 William Wallace Cox died February 25, 1907, aged seventy-four years.