Illegal Fences of the Great Plains

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One of the unforeseen downfalls of having the remote regions of the plains states quickly surveyed by the General Land Office was the slow migration of settlement that came to certain areas. In areas such as the Sandhills region of central Nebraska the GLO completed the surveys in the 1870s, but by 1900 large portions of land still remained unsold. Section corner monuments that were originally established as pits and mounds in an area void of timber and stone often disappeared as soon as the deputy surveyor turned his back on them.

Those that initially came to the uninhabited areas west of the 100th Meridian brought cows instead of plows, which greatly changed the plan set forth for the 160-acre homestead that had worked so well further east. Ranchers began to establish themselves in the best areas that included the lakes and streams. The ground could not sustain a cultivated crop, but the native grass flourished, so the cattlemen had everything they needed except actual title to these vast areas. A typical cow/calf pair each needed up to 12 acres for summer grazing, so sustaining large herds required thousands of acres.

The invention of barbed wire in 1873 made it possible for ranchers to construct miles upon miles of fence to contain the large herds that often numbered in the tens of thousands. Since the buffalo and most of the Native Americans had been pushed out of the areas with little opposition, ranchers began erecting fences upon the unsold and sparsely marked public lands. One large ranch was said to have had fences over sixty different townships and had seemingly claimed title over any land on which the herds were kept. There was plenty of area for ranchers to spread out, so they seldom clashed with each other and instead formed alliances.

By the early 1880s, interest in the western lands was growing with singlefamily homesteaders beginning to seek land in the same areas that were in control of the cattlemen. Ranch workers would often tell the arriving settlers that the land had not yet been surveyed. The absence of visible survey monuments gave all indications that the ranchers were correct despite what the settlers had been told at the area land offices. It was also reported that some monuments had been manufactured or even relocated. Some homesteaders, however, would not be deterred and continued to move into the areas with their plows. Word of the fencing, which was technically not illegal at the time, reached those in Congress who were in position to create new laws.

Ranchers and Grangers Clash
One politician, Charles Van Wyck, was first elected to the House of Representatives from New York in 1859. He later moved to southeast Nebraska in 1874 where he engaged in agricultural pursuits and was a member of the United States Senate. Van Wyck was sympathetic to the homesteaders who were often referred to as "grangers". In 1885 his efforts created what became known as the Van Wyck Law which made it illegal for anyone to place a fence upon the unsold government lands. The new law had little effect in many of the areas that were largely void of justice and where long established and accepted practices were still the rule of the land.

As more pressure began to build against the ranchers, they began seeking legislation that would allow them to lease the government lands where their fences were already established. Congressional support for leasing large areas of the Public Domain was limited since those in the east generally did not understand the needs of the western rancher. Clashes between ranchers and grangers grew as each sought to establish a livelihood for themselves in a different way. As the homesteaders grew in numbers, they formed small vigilante groups who would cut down sections of the illegal fences. Some ranchers, in turn, would send out hired men to pull down the roofs of the sod houses when the farmers were not at home. As tensions grew, the government found it nearly impossible to prosecute those who had established the illegal fences because they could not easily prove exactly where the fences were located.

Cattlemen and High Stakes
By 1895 the GLO began sending out a special force of surveyors to resurvey some of the key lands in question. To complicate matters it was discovered that some areas that had been originally surveyed by the GLO were so erroneous that entire townships had to be independently resurveyed. As often the case, homesteads that were thought to be in one section were actually partly or wholly across the line and into another one. Detailed measurements had to be made to show the locations of the existing homestead in relation to where they actually resided with the surveyed lines. Special attention was also taken by the GLO surveyors to note the exact location of every fence, which were then shown upon the resurvey plats.

In May of 1899 two of the largest cattle companies in western Nebraska merged and became an even more powerful entity. Their range included an estimated 16,000 head of cattle, and eastern bankers were eager to authorize the necessary loans to allow them to bring in even more. The cattlemen had now gained the solid backing of many of the most prominent businessmen in the larger meat packing cities of Omaha, Kansas City, and Chicago. These cities each had high stakes in the continued growth of the cattle industry regardless of how it was being operated according to the law.

As pressure built, one rancher hired surveyors to mark the locations of an estimated 400 sections and began building fences along the actual government lines instead of having them running randomly across the land. Many had windmills, stock tanks, and other improvements on the government lands, so they were not easily going to give the land up to the homesteaders. The cattlemen still retained hope that leasing laws could be passed to safeguard the land that they were already using.

In 1902 Secretary of the Interior, Ethan A. Hitchcock, while armed with instructions from the Roosevelt Administration, set out to fully enforce the Van Wyck Law and sent more government surveyors to the area. The ranchers, now seeing that they could no longer circumvent the law and that leasing was not an option, decided that they would instead attempt to gain title to the areas where their fences were established rather than remove them.

For the most part the cattlemen continued to believe that they were not doing anything wrong and that they were only fencing land that was unsuitable for any other uses, especially farming. Many were trying to work out a suitable plan that would enable them to continue operating as they had done during the previous decades. On behalf of the ranchers, the House Committee on Public Lands held hearings on leasing and grazing legislation between January and June 1902, but little was accomplished. One prominent rancher, Bartlett Richards, gave this testimony before the Committee:

"Here the United States has immense properties that are not improving, which we [cattlemen] have grown up with and have improved, and we ask you that while you have no better use for this land, that you will lease it to us at a reasonable rental, and that the moment you have any better use for it, for irrigation, for mineral entries, for storage reservoirs, for agricultural purposes, for forest reserves, for anything else which may come up and be the sense of Congress that it wants, that land shall be lifted out of the lease, and no recompense shall be made to the former leaseholder."

Congress again hesitated to pass a leasing act, and th
e United States Department of the Interior became even more determined to remove the fences. The ranchers needed to find people who could legally obtain title to the land, but at the same time were not interested in actually living there.

Widows and Veterans
The answer to obtaining the land where their fences were located was found in one of the lesser-known methods of securing land in the United States: the soldiers’ military bounty land warrants. Not only could the Civil War veteran obtain a land warrant, but so could a surviving widow or orphan child of those who were killed in battle.

Many Civil War veterans or widows were in the later years of their life and had never tried to obtain a land warrant because they were not interested in relocating away from their established areas. Others were mentally or physically disabled and were likewise disinterested in moving to unpopulated areas where there was little protection from harsh winters. Many, however, were enticed by the money that agents working for the ranchers offered them in exchange for filing on predetermined areas where the illegal fences were known to be located. Finding the veterans or widows often became a challenge, but one sure source of abundance was at institutions known as soldiers’ and sailors’ homes. Many veterans and widows began placing their 160-acre land warrants in the hands of these agents. The tracts were not the typical square-shaped 160-acre quarters, but rather linear interconnected 40-acre tracts that followed the existing fence lines. If a fence was found to run slightly outside of a secured tract, that section would be relocated. Persons working closely with the agents in turn bought the land at a fraction of its actual value from the veterans.

According to the law, the soldiers or widows had to have one year of residency and cultivation and they had six months from the initial filing of the application to make entry and commence settlement. Elongated 160-acre entries began appearing at the land offices in suspicious patterns that followed the illegal fence lines.

A further frustration for the ranchers was the passage of the Kinkaid Act that was brought into effect in 1904. This new act allowed 640 acres to be homesteaded. The desire for land was much too great and even more homesteaders began pouring into the areas once solely controlled by the ranchers.

More Trials and Tribulations
The case against the powerful ranchers proved difficult to prosecute and continued for many years. In June of 1905, the defendants had sworn in court they had not fenced any government land even though the evidence was mounting against them. In the months between June and November 1905, a special force of GLO surveyors was employed by the government to retrace additional original surveys. With this investigation, the illegal fences were located and shown on maps indicating at least 212,000 acres of government land had been illegally fenced and was being used. The cattlemen initially entered a plea of not guilty, but with the evidence of the fence locations in the hands of the United States attorneys, they quickly reconsidered and pleaded guilty to "asserting ownership and exclusive occupancy of government lands". They asked for leniency and agreed to remove their illegal fences. In a case of seeming injustice, the defendants were only fined $300 each and sentenced to six hours in the custody of the United States Marshall. This action greatly angered the federal prosecutors who had spent thousands of hours and dollars trying to bring the defendants to justice.

One year later, the prosecuting team was confident that they had gathered enough additional evidence for a second trial. New charges were brought against prominent ranchers for "conspiracy to defraud the government of the title and use of public lands, subornation of perjury, and conspiracy to suborn perjury". Men from the United States Secret Service had spent 13 months investigating and obtaining further evidence. Affidavits were taken from 600 witnesses, subpoenas were issued for 165 witnesses, and 132 people offered evidence in trial. The testimony revealed that aged soldiers or their widows had often been gathered in large numbers and had been taken to prearranged locations in a mass system of securing their land warrants. Paperwork had already been filled out that included areas of land that were known to have been fenced. To circumvent the requirement that the soldiers and widows needed actual residency upon the land, crude shacks were built, and a nominal residence was maintained by ranch hands just long enough to show proof to the land offices and secure the patents. The cattlemen knew the land office inspectors were generally more lenient toward the soldiers or widows and did not scrutinize the validity of their patents as they had been doing with other homesteaders. The ranchers also knew that the time required by the Interior Department to cancel claims because of non-compliance was generally taking at least two years which bought them additional time.

For twenty days former soldiers testified in federal court about how many of them had been given an all-expense-paid trip to the areas where they were induced to sign papers, swearing they had taken the land for their own use and that there was no agreement to transfer it when the patent was secured. One particular day in court was called "Ladies Day" since it consisted of the testimonies of only the widows of Civil War veterans.

Resurveys and Broken Dreams
In December of 1906, the jury delivered a guilty verdict on 35 of the 38 counts. A motion for a new trial was overruled, and the sentence to two large cattlemen was $1,500 fines and eight months in prison. Appeals were made on the verdict, and the men were released on a $5,000 bond. The appellate court affirmed the guilty verdict in December of 1909. The following October the Supreme Court declined to hear any further the appeals and ordered the ranchers to pay the fines and prepare to serve their sentences beginning in December 1910.

A large percentage of those who had sought the 160 or 640-acre homesteads intending to cultivate crops eventually left with broken dreams after failing to make a living. Ranchers began legitimately buying the land from those who had no desire to raise cattle. One of the lasting aspects of the entire situation was the resurvey of nearly 300 townships in central and western Nebraska. Many of those resurveys were marked with permanent GLO iron pipes and brass caps.

Jerry Penry is a Nebraska licensed land surveyor and a frequent contributor to The American Surveyor.

A 1.529Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE


About the Author

Jerry Penry, PS

Jerry Penry has been surveying for 34 years, is licensed in Nebraska and South Dakota, and has been employed with Lancaster County Engineering for 21 years. He is also serving his second term on the Board for the Professional Surveyors Association of Nebraska.