I have been asked by the Historical Society of Nebraska to give some personal recollections of pioneer life in Burt county, particularly in connection with the settlement of De-

catur, and the steamboats which then seemed the link between the Wild West and civilization. It has been said that all things pass away when their usefulness is ended. Whether this be true or not, the days of steam boating on the upper Missouri were of short duration. The locomotive with its long train of cars sent them into oblivion with the stagecoach and the prairie schooner.
   The very first steamer to come is far as this point was sent out by the government in 1819 with a party of explorers. This boat was named Western Engineer and commanded by Maj. Stephen H. Long. The expedition remained at a point just below Council Bluff during the winter of 1819-20. Early in the spring, the boat received a new commander and was used for transporting government supplies to the forts and trading posts along the Missouri. The second steamer to plow the waters of the "Big Muddy" was the Yellowstone owned by the American Fur Company and commanded by Captain Bennett. This steamer made its first trip during the summer of 1831. From this date until after the close of the Civil War, steamers made regular trips between St. Louis and the Yellowstone. During the last years of steam navigation on the upper Missouri, shifting sands and changing boundaries rendered extreme care necessary in order to avoid being stranded on a sand bar, and progress was slow, until even steamers, that the old settlers declared could run over a heavy dew, came less and less frequently. Coming here in 1856, I found them still plying and eagerly looked for by the few white inhabitants living in settlements near the river. These steamers were not "floating palaces," but they represented a certain phase of luxury and were the connecting link with the outside world. There was no hurry in those

days of elegant leisure, but the instant the whistle of a steamer was heard there was a general stampede for the landing. Parties were quickly improvised, and the eatables and drinkables aboard were levied upon by those whose principal living consisted of such delicacies as venison, wild turkey, prairie chicken, and game of every variety. These were gladly exchanged for bacon, fruit, vegetables, etc. There was always a darky aboard with banjo or fiddle, so the festivities culminated in a dance.
   At the time of which I write, 1856, the principal trading post at Decatur was held by Peter A. Sarpy, and for a time Clement Lambert was his chief clerk. Like most Indian traders, Lambert was fond of his booze. One evening a steamer arrived from St. Louis and tied up for the night. This was the signal for a general carousal, and Lambert went on a tear. He owned a famous pony, as fearless as himself. When Lambert got fairly full, he stripped to pants and Indian leggings, buckled a belt around his waist, stuck in it a pair of Colt's revolvers, sprang to the back of his pony, gave a couple of Indian war-whoops, and made for the river. Barely halting long enough to give another yell; and with a gun in either hand, he ordered the gangway open, which was quickly done under the force of circumstances. Then with a command, more forcible than elegant, he told the pony to go, and he went, not only on to the steamer, but up the flight of stairs, into the saloon, and up to the bar. Here he ordered a big drink for Billy, the pony, and commanded every soul present to "drink to the health of Billy and the President of the United States."
   During the Civil War, steamers reduced in size and with light draft carried supplies to the forts as far north as Bellton and Pierre, bringing back rich furs, by which many traders made independent fortunes.
   Just here, a personal incident connected with steam-boating may not be out of place. The uprising of the northern Indians and the dreadful massacres had called out a large number of troops who went in defense of the white settlers.

I was then captain of Company I, 2d Nebraska Cavalry, Governor Furnas, colonel of the regiment. Being severely ill at Crow Creek agency, it became necessary to send me to the hospital at Ft. Randall. As one of the fur company's steamers came puffing down the river, it was hailed for this purpose. Fearing they were to be pressed into the service, the captain paid no heed to the signal, whereupon the officers in command ordered a shot fired across her bow, causing a quick change in the direction of the boat, for she speedily came to the landing, and I was carried aboard and safely conveyed to the hospital. During the trip, the Captain became interested in my condition, and at a point where they were taking on wood, the Captain sent the private who had been detailed to take care of me ashore, and told him to get a bush of bull berry. The bush was brought, loaded with berries, red, acid, and astringent. The Captain told me to eat a handful, or extract and swallow the juice, which I did. Within an hour I experienced great relief, and to this I feel sure I owe my life.
    The first lumber-yard established on the upper Missouri was at Omadi, Dacotah county, one of the first towns laid out in the territory of Nebraska. Steamers from St. Louis came to this point laden with lumber for the flourishing young town. A schoolhouse was erected, sawmill built, and hopes were high for making Omadi the county seat of Dacotah county. Today, the site of Omadi is marked by a sandbar on the opposite side of the river from where it was originally located. The treacherous Missouri, having decided to change her bed, cut out the bank, and swept over and around to the other side, leaving the place where poor Omadi had been, in Iowa.
   Coming back to 1856, the date of my arrival in Decatur, I take up the story of pioneer life in Burt county.
   The "Iowa Central Air Line!" was surveyed and located to the Missouri river, at a point opposite Decatur. There seemed to be no possible reason for believing the road would not be speedily built through. Having a little money to in- 

vest, I decided to purchase land and shares in the county and town. Since I had been one of the engineers in the party surveying the line, my locating here was believed to establish the fact of the point of crossing the river, and shares jumped in one week from one hundred to eleven hundred dollars. It is a matter of history how the Iowa Central Air Line went into possession of the Chicago, North-Western R. R. Co., and was made to swerve to the south in order to reach Council Bluffs, which had come into prominence from being the point where supplies for troops and overland parties were obtained. Stephen Decatur, better known as "Commodore Decatur," was godfather to the town which bears his name. Though sorely disappointed by the railroad failure, the settlers bravely went to work to develop the natural resources of the beautiful and fertile country.
   The Indians had occupied the reservation several years, but not until after the close of the Civil War was the allotment made giving to each Indian his own particular portion. I was appointed by the government to make the first allotment, and at the close of the second summer every member of the two tribes, Omaha and Winnebago, was satisfactorily settled.
   At the time of my coming there was not a white woman in Decatur.
   The first team owned there was a yoke of oxen belonging to me, slow but sure.
   Surprise parties were the fashion, and often did they carry a merry party out to the sod house of some settler who was aroused from his slumbers by the "whoa haw gee" of the driver. It required some effort to get up a first-class entertainment, but there were always some ready to lend a hand, and by the time a halt dozen calico dresses were seen on the street, dances, concerts, lectures, etc., were not infrequent. Many of the settlers were afraid of the Indians, who were our near neighbors, but the people of the town had become accustomed to their antics and war-whoops so that none of these things disturbed them.

   One summer, when town lots were at low ebb, it was decided to make an extra effort to sell some. The 4th of July was at hand, so what could be better than to combine business with pleasure and patriotism. The combined intellect of the place evolved a fine, program that should stimulate curiosity and whet the appetite for town lots and a good dinner. A few days before the Fourth, "dodgers" were sent out through the county, reading like this:

   The surprise was to be in the form of a war dance and designed for the climax of the festivities. The Indian agent, sent by the government to the reservation, entered heartily into the arrangement and promised to furnish the finest specimens at the agency for the war dance. The ladies of Decatur entered into the spirit of the time, and with patriotic fervor vied with each other in preparing delicacies for the banquet, baking "Revolution cake" and "Washington pie," and furnishing enough bread, doughnuts, chicken, baked beans, etc., to feed a regiment. The day was perfect; flags and flowers gaily dressed out the tables set on the green, and everybody was on tiptoe of expectations, ready to welcome the crowds sure to come, with true western hospitality.
   A large number of Indians were to come in their war paint and feathers and with the red, blue, or yellow blankets furnished by the government. It was expected they would make a picturesque showing riding down the bluff at full speed on their swift ponies. The expectations were fully met. The Indians are always fond of surprises, and at this time determined to have one of their own, so, instead of waiting quietly

for their part of the program, they came tearing down the bluffs with unearthly yells, whooping as they had been told to do, their blankets and long hair streaming in the wind, just as the farmers and settlers with their wives and children dressed in their Sunday best were coming in on the river road. With one startled look, every last wagon was turned quickly about and went flying home at a galloping pace. They had heard of Indian uprisings, and knowing nothing of the "wonderful surprise," stayed not on the order of their going but went at once. The Decatur people had their war dance, which was an old story to them, and the Indians had the "free meals," for every table was quickly cleared by the hungry savages, who were ready to eat anything from a coyote to a grasshopper.
   It is said that "hope deferred maketh the heart sick." Surely the people of Decatur that day had reason to feel that fate was against them. Even their patriotic enthusiasm was not rewarded. However, they have gone on with courage unabated, until now, despite the absence of a railroad, they have one of the prettiest towns in the state. They have good schools and churches and beautiful homes where peace, prosperity, and contentment abide under the shade of the groves their own bands have planted.

   In attempting to comply with the request of your Society to prepare a history of the Salt Basin near Lincoln, I shall confine myself as closely as possible to documentary evidence,

but for some of its episodes I shall be compelled to resort to my own memory and that of others, concerning transactions of which no previous written memoranda have been made.
   As has been mentioned in papers previously read before this body, the saline springs at Lincoln were, in early days, supposed to be caused by large deposits of salt in their vicinity, and because of conditions of manufacture and transportation then prevailing, here and elsewhere, they were regarded as very valuable. It is well known that these considerations were the principal and determining factor that induced the location of the seat of government at this place in the summer of 1867, by commissioners appointed by the legislature and vested with authority to select a site therefor.
   In the early winter of 1869-70, the writer prepared a series of articles under the title of "A History of Lincoln," which were printed in a weekly newspaper then published at Lincoln and called the Nebraska Statesman. They met with so much, popular favor that in the following summer the State Journal Company reproduced them in a pamphlet edition of several thousand copies. In the latter form they were distributed by both public officials and private individuals throughout the United States. But notwithstanding that provocation, public lethargy, due, perhaps, to exhaustion consequent upon the then recently ended Civil War, was so profound, and the public mind was so preoccupied and perplexed with the problems of reconstruction following that conflict, that the country remained at peace. Previously thereto Mr. Augustus F. Harvey, now deceased, then a prominent citizen, and formerly editor and proprietor of the Statesman, and who, as

surveyor and civil engineer, had made the first survey and plat of the town site of Lincoln, had published a pamphlet entitled "Nebraska as It Is", from which my own publication reproduced the following:
   "In Lancaster county, averaging forty-five miles from and west of the Missouri river, lies a great salt basin. Within an area of twelve by twenty-five miles, through which Salt creek runs in a northeasterly direction, are found innumerable springs of salt water, containing 28.8 per cent of salt by weight, the product itself containing ninety-five to ninety-seven parts of chloride of sodium (pure salt) and three to five parts of chlorides and sulphates of magnesium, calcium, lime, etc.
   "There is no question of the vast wealth which will some day be derived from this region. The absence of fuel for the purpose of manufacture is more than compensated for by the excessive dryness of the atmosphere and the consequent rapidity of evaporation. From the 1st of April to the middle of November scarcely a day passes without a warm, dry wind. During the months of June, July, August, and September the winds are almost constant."
   (Mr. Harvey afterward demonstrated by actual experiment that the average evaporation during the months last named is at the rate of ten inches of saturated brine in sixty hours, ten inches of fresh water in seventy-two hours.)
   "The salt made by boiling or washing the deposits around the spring crystallizes; like the finest table salt. That from solar evaporation, or over slow artificial heat, forms large crystals from 1-16 to 1-8 of an inch, and is more translucent and snowy than the Syracuse or Kanawha salt.
   "The location of the salt region is an evidence of that wisdom and goodness of the Creator which men are slow to acknowledge, but upon which all human welfare must rest. It is a curious fact that, as far as we know, all the principal deposits of this one absolute necessity to the preservation of animal life are situated about equal distances apart, and with an apparent forethought of the commercial relations of the

territory between them. This will be apparent when one marks upon the map the New York, Michigan, Virginia, Missouri, Wisconsin, Tennessee, Texas, Nebraska, Dakota, Colorado, Utah, Nevada, New Mexico, and Arizona salt regions, and notes the nearly uniform spaces between them."
   As well to corroborate this testimony as to forestall an inference that might otherwise be drawn therefrom, that so much heat and drouth might prove an obstruction to successful agriculture, the "history" supplemented the quotation from Mr. Harvey by the following commentary:
   "Usually during a large portion of the Summer but little rain falls in any part of the state, such drouths, however, seldom occurring until after the grain crops are fully developed and beyond the reach of any injury therefrom, the deep and porous soil having a singular power of retaining the moisture received by it in the earlier portion of the season. For this reason vegetation is found to thrive, unaffected by drouth, long after the surface of the ground has become so excessively dry that the water ion the surfaces of streams or in other exposed situations becomes almost the only considerable source from which the atmosphere is supplied with the aqueous vapor necessary to prevent nocturnal chills." As Mr. Harvey observes in his pamphlet, the atmosphere is so excessively dry that "dead animals upon the prairies do not rot; they dry up." This accounts for the previous-mentioned rapidity of solar evaporation.
   From these and other equally trustworthy data, including indications obtained by lessees of the state by the sinking of a well near the springs to a depth of 340 feet, it was thought to be sufficiently proved that brine of at least sixty degrees, or twenty per cent strength, could be produced in inexhaustible quantities from a thousand wells to be sunk within the surrounding basin, comprising some three hundred square miles and constituting a much larger and more productive territory than could be found elsewhere in the United States. Taking all these matters into consideration and dividing the results to which they pointed by four, so as to eliminate every

supposable error of fact or of calculation, it was ascertained, by mathematical demonstration, that the value of the annual output from each of the thousand anticipated wells would be approximately a half million dollars, or five hundred million in all. And the product, upon the assurance of Mr. Harvey, was represented to be 97 per cent pure common salt, fit for table use without rectification.
   The foregoing shows what can be done by a vivid and vigorous imagination with a little rain water and a moderate quantity of chloride of sodium slightly adulterated with alkaline salts. Upon a fly-leaf of the pamphlet was printed the following certificate:

"Lincoln, Nebraska, June 22nd, 1870.
   "We, the undersigned officers and Commissioners of Public Buildings of the State of Nebraska, do hereby certify that we have carefully examined the proof sheets of the following pamphlet, and that we are thoroughly satisfied that the same is a true, correct, and impartial history of the town of Lincoln, and of the several public enterprises and matters therein discussed.

"JOHN GILLESPIE, DAVID BUTLER,
Auditor. Governor.
"THOMAS P. KENNARD,
Secretary of State."

   The Governor and Auditor have gone to their final reward, but the Secretary of State is still living in Lincoln at a hale and hearty old age, and has never recanted. The practice of supplying the delinquencies of judicial tribunals by irregular methods has never been adopted in Nebraska.
   I have always regretted that these matters were never brought to the attention of Col. Beriah Sellers, as certainly would have been done if the writer had enjoyed the personal acquaintance of his celebrated biographer, Mark Twain. The evidence already cited is, however, by no means all or the most weighty of which the case is susceptible. There is more

 and better at hand and easily producible, to which attention will be invited in the course of the following narrative.
   It has been a policy of the United States ever since the formation of the government, and one which is evidenced by it series of congressional enactments beginning with the year 1796, to reserve saline springs and deposits upon the public lands from sale or private entry, and to preserve them for the benefit of all the people of the several states formed or to be formed out of the territory in which they are found. In consonance with this policy an act of Congress of April 19, 1864 authorizing the formation of a state government and providing for the admittance of Nebraska into the Union, contained the following section:
   "Sec. 11. And be it further enacted, That all salt springs within said state, not exceeding twelve in number, with six sections of land adjoining, or as contiguous as may be to each, shall be granted to said state for its use, the said land to be selected by the governor thereof, within one year after the admission of the state, and when so selected to be used or disposed of on such terms, conditions, and regulations as the legislature shall direct; provided, that no salt springs or lands, the right whereof is now vested in any individual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall, by this act, be granted to said state."
   Pursuant to this statute the first governor of the state, the Honorable David Butler, lately deceased, selected twelve salt springs lying within the "Great Salt Basin," above mentioned, the largest of them being the one now under discussion. Prior to that time the public lands of the territory of Nebraska had been surveyed and platted under the authority of an act of Congress, July 22, 1854, and these springs had been noted upon the field books, but the notes had not been transferred to the plats prepared and returned for the use of the land department in making sales of the public domain. It was thought, also, that there were ambiguities in certain previous acts of Congress, the nature of which it is unneces-

sary and would be tedious to explain here, by reason of which the Nebraska springs had unwittingly been excepted from the rule, which, as above stated, Congress had, from the first, intended to apply to all such properties.
   In 1857 or 8 Mr. John Prey had removed to this territory from Wisconsin and with his sons, Thomas, William L., and John W., had settled upon public lands lying in what is now Lancaster county. Afterward William L. obtained employment from the late J. Sterling Morton at the residence of the latter, near Nebraska City in Otoe county. The regulations offering the lands for sale at the United States land office at the latter-named place made no reservation for the protection of settlers. The older Prey had sold his farm in Wisconsin, but had not yet been paid the purchase price, and was therefore without means to secure the possessions of himself and his sons. In this emergency he, as well as some of his neighbors, similarly situated, applied to Mr. Morton for assistance. Morton, as agent for certain eastern parties, had in his possession a considerable number of military bounty land warrants, issued under the authority of an act of Congress approved September 28, 1850, and which were selling at some discount and were exchangeable at their face for public lands at their minimum price. His instructions were to sell them either for cash or to permit them to be located, relying upon the good faith of the locators to secure their payment upon the land as soon as title therefor should be obtained, Morton being responsible to his principal for the consummation of the transaction in good faith. The Preys, besides asking for warrants for the purpose mentioned, which he seems to have furnished without hesitancy, besought him to furnish additional warrants to cover what has been called the Great Salt Spring, representing to him that it was rich with salt which at a day not far distant would be very valuable. He had never seen the land itself, or the surveys or plats in the land office, or talked about them with any United States official, and was skeptical about its containing salt deposits of any considerable value. On the contrary, he believed it to be

alkaline land unfit for agriculture or any other useful purpose, and so expressed himself. No one, however, seemed to doubt that it was lawfully subject to entry and sale, and the subject was not discussed or so much as mentioned. With a great deal of reluctance and after much importunity, he finally consented to furnish a part of the warrants asked for, provided the locations should be made in the name of William L. Prey, in whom he had the uttermost confidence and upon whom he mainly relied to carry out the arrangement usual in such cases. But for some unknown reason, probably because of the mistake or inadvertence of the register of the land office, the location was made in the name of John W. Prey. These entries were made on the 12th day of September, 1859. In July 1868, John W. Prey executed a deed purporting to convey to Morton an undivided one-third of the lands mentioned in the certificate of location, and on the same day similar deeds were made to Andrew Hopkins and Charles A. Manners. Patents were issued by the land department and transmitted to the local office, for delivery to Prey, but the Secretary of the Interior, upon being informed that the lands contained valuable saline deposits, arrested them before delivery, and after having caused an investigation to be made, directed their return to Washington and cancellation, which was done in the year 1862.
   The only question affecting the validity of the location or of the patents was whether the Springs had been reserved from sale, or "private entry," as it was called. That the land was valueless for agriculture was apparent to all, and no attempt at their actual occupancy by Prey or his grantees was made until after the lapse of more than ten years from their location. The Nebraska legislature met in regular session on the 7th day of January, 1869, and the governor's message read on the next day submitted the following matters for their consideration:
   "Although comparatively little has been accomplished in the actual production of salt, that little has settled beyond question, if indeed further proof was needed, that we have,

within sight of this hall, a rich and apparently inexhaustible supply of pure and easily manufactured article. It will be directly and indirectly a source of wealth to the state, whose great value no one can fully estimate.
   "Prompted by a sense of the importance of the early development of this interest, I gave to Mr. A. C. Tichenor a lease, conditioned upon the approval of the legislature, of one section of the salt lands belonging to the state. One-half of his interest in the lease was, by Mr. Tichenor, assigned to the Nebraska Salt Company of Chicago. This company, from want of means or some unknown reason, has failed to fulfil the obligations undertaken in their purchase. So far has it failed that the local demand for salt has not been supplied, and that it has been unable at times to supply even a single bushel for home consumption. It is credibly represented that this company has refused to pay the debts which it has contracted among our citizens. While such is the state of things with this company, experienced men declare their readiness to invest in these works any required sums, if the opportunity is presented them.
   "The original lessee, in assuming and meeting the liabilities of the company, has a considerable amount invested in buildings and other works adapted to the prosecution of successful manufacture. He, as managing agent for the company, has been faithful, though he has failed to receive the support which it is the duty of the company to render. He could not by any action of the state be made to suffer. But the public interest is at too great an extent involved in the speedy and full development of the productive capacity of these salt springs to allow them to lie in the hands of those who, from lack of energy or means, shall fail to work them to their full extent. Though the government should not take possession of the works built by Mr. Tichenor, without making full compensation, the general assembly should at least take such action as will soon result in securing the manufacture of salt to the greatest possible extent."

   The legislative response to this urgent appeal was an act, approved February 15, 1869, by which the lease mentioned in the message was declared to be void and of "no effect in law," and the governor was "authorized and directed" to enter into a new lease for the same lands with Anson C. Tichenor and Jesse T. Green, convenanting (sic) for the construction of certain manufacturing works, to the aggregate cost of one hundred thousand dollars, the commencement of the manufacture of salt within ninety days from the date of the instrument, and the payment to the state of two cents per bushel upon the gross output, and providing for a forfeiture of the lease for failure to make the required improvements or for failure to prosecute the business for so long a period as six months at any one time. The act also authorized the governor to lease any other of the saline lands to any other competent persons upon substantially the same terms, but requiring a greater or lesser expenditure for improvements, as he should see fit. On the same day the session was finally adjourned and on the same day also a lease with Tichenor and Green, as contemplated by the act, was formally executed, and the lessees went into possession thereunder and proceeded with the erection of vats and pumping apparatus for the purposes of manufacturing salt by means of solar evaporation of the surface brine. It is shown by the official report of the state treasurer, James Sweet, under the date of January 12, 1871, that the total revenues derived from royalties for the manufacture of salt were, up to that time, $53.93, indicating a total production of 2,696 1/2 bushels. It does not appear that the state ever subsequently received any income from that source.
   The governor convened the legislature in special session on the 17th day of January, 1870, and submitted to them a message reciting the objects to accomplish which they had been called together, and containing the following paragraphs:
   "To ratify and confirm a certain contract made by the governor for the conveyance of certain lands to Isaac Cahn and John M. Evans, to aid in the development of the saline interests of the state.

    "Anxious to secure at an early day as possible the development of our saline interests, I entered into a contract with Messrs. Cahn and Evans in August last, whereby they obligated themselves to commence it once the sinking of a well on land leased to them for that purpose, and to continue the sinking of the same to the depth of eight hundred feet unless brine of fifty degrees in strength should be sooner obtained, and to keep a perfect geological record of formations passed through in the prosecution of the work.
   "To aid them in this, I contracted, subject to your approval, to deed them two sections of saline lands belonging to the state.
   "Since that time they have steadily prosecuted the work, meeting, however, with very many obstacles. They have already expended twelve thousand dollars and it will cost them several thousands more to complete the work. The geological record provided for in this contract will prove invaluable in the sinking of future wells. I trust you will see the justice of this measure and cheerfully confirm my action in the matter.
   "It is of the highest importance that this interest be developed without delay, and I see no way whereby it can be done without state aid."
   Without giving the matter mentioned in the foregoing paragraphs of the governor's message any consideration, the legislature finally adjourned on the 4th day of March, 1870, and were by executive proclamation reconvened in a second extra session on the same day. Again the governor, by message., urged upon that body the importance of the subject under consideration, saying:
   "The ratification and confirmation of a certain contract made by the governor for the conveyance of certain lands to Isaac Cahn and John M. Evans, to aid in the development of the saline interests of the state, or such other aid as the legislature may see fit to extend. I again urge this subject upon you for your earnest consideration. I can not but think that the best interests of the state need and demand it. The time

has come when the people of this state ought to know whether the salt springs owned by her are to be a source of wealth, rivaling Saginaw and Syracuse, or not. It is hardly to be supposed for a moment that individual enterprise can afford to take upon itself the risk of ruin consequent upon sinking a well at a vast expense and failing to obtain brine. It may be true that these lessees are able to sell out and make themselves whole. But whether true or not, true it is beyond doubt that individual speculation in our salt springs is not what the state wants. Indeed, I think it hurtful to the reputation of our saline resources. We want them developed. We want the problem solved once and forever. I would much prefer that it be made a condition of the grant or other aid that the present lessees shall not assign their term or any part of it, until they have sunk the well to the depth required. This would certainly be for the best interests of the state. It would insure hearty and vigorous effort on the part of the lessees. I hope gentlemen will consider the subject well, because I know of my own knowledge that these lessees, after a great expenditure made in good faith and at my own earnest solicitation, will be compelled to abandon, for want of means, further prosecution of their enterprise. This very abandonment will by no means tend to increase the zeal of enterprising adventurers in making further experiments. I therefore ask at your hands such legislation as will tend to push forward this work to a rapid completion."
   This appeal, like the former, fell upon deaf cars, and, without adverting to the subject, the legislature on the same date on which they had been for a second time reconvened, adjourned without day. At the ensuing regular session of the legislature in 1871, Governor Buffer was impeached and removed from office, and the lease to Cahn and Evans was never ratified or validated. They proceeded, however, to sink a well to the required depth, before reaching which they struck a stream of flowing water too slightly saline for the profitable manufacture of salt. Their works were then aban-

doned, but the stream continues to flow in undiminished quantity.
   It was said at the time that the flowing vein was of sweet, fresh water, and that its salt and alkaline qualities, when it reached the surface, were due to its mixture with other veins encountered on its way upward. And it was said, also, that its velocity was such that it would rise in a tube to the height of thirty feet above the ground. I have attempted to verify or disprove neither of these statements. If they are true, the stream may perhaps some time be of practical value for the generation of electric power. Much the same story was told of a well afterwards sunk by the city, on Government (then Market) Square, for the purposes of protection from fire.
   Not long after the execution of the lease to Tichenor and Green, the former disposed of his interest to Horace Smith of Springfield, Massachusetts, a member of the celebrated firm of Smith & Wesson of revolver fame, who by personal inspection and with the aid of experts had satisfied himself of the great value of the salt deposit controlled by the lessees. But not deeming the business of manufacture at Lincoln so far developed as to require his personal attendance, he placed his matters there temporarily in charge of his nephew, Mr. James P. Hebbard, of Nebraska City.
   There is no reason to doubt that Morton and his associates acquired their supposed title in good faith and felt assured of its validity during all this time, but when or how he became convinced that the laud was of any considerable value is not known. He may possibly have read Mr. Harvey's pamphlet or my own. Quite likely he had read the report of an expert inspector on file in the land department and hereafter mentioned, and he was doubtless familiar with the governor's message and with the legislative act of February 15, 1869, and with the covenants of the lease made pursuant to it, and with the purchase by Smith, a reported wealthy and capable business man, after a careful personal examination with the aid of an expert, and with the expenditures of Cahn and Evans and the reassuring indications reported to be obtained by the

sinking of their well. There was certainly evidence enough to convince any reasonable main, and Morton was never accused of lacking the faculty of reasoning. But by the fall of 1870 it had become evident that the title to the tract could never be put beyond dispute otherwise than by a judgment of the courts, and, in a litigation concerning it, certain technical advantages of considerable value, it was supposed, would abide with the party in possession who would enjoy the position of defendant, and be better able to parry an attack than to make one. With a view to securing these advantages, Morton organized an expedition in December of that year. There was then no direct communication between Lincoln and Nebraska City by rail, and he traveled "overland" with a wagonload of provisions and supplies and one or more assistants. Arriving in Lincoln at evening on the 24th day of the month, he looked about him for some trusty local personage to help him out with his enterprise, and finally hit upon Ed. P. Roggen, then just arriving at manhood, afterwards secretary of this state, and with his party thus completed repaired to the salt springs just at nightfall.
   Among the structures erected by the lessees pursuant to their covenants with the state was a small building intended for use as a sort of headquarters and barrack room for the proprietors and their employees. The weather had been cloudy and threatening for the past week, and the manufacture of salt by solar evaporation had been temporarily suspended, and the "works" were deserted. The building was unlocked and unguarded and the party went into occupancy without opposition. News of the invasion soon came to the ears of Green and Hebbard and caused them no little uneasiness. It was feared that unless the intruders could be at once expelled, their possession would ripen into such a character that it could only be terminated, if at all, at the end of a long and tedious litigation, during which the tenants of the state would incur a forfeiture of their lease, besides losing the profits of manufacture in the meantime. In view of these possibilities they immediately repaired for counsel to Col.

James E. Philpott, one of the leading legal practitioners in the city, and laid their case before him. Cordwood, with the exception of corn, was then almost the sole fuel used or obtainable in Lincoln, and was worth from ten to fourteen dollars per cord, reference being had to quality. The lessees had a large quantity of it piled hear the building, and the Colonel suggested that if the trespassers should consume any of it, which on account of the state of the weather they would doubtless be compelled to do, they would commit the offense of larceny, for which they would become liable to arrest and criminal prosecution. Acting upon this suggestion, two persons were dispatched to the salt springs with instructions to observe and report events. They were not long in discovering both Morton and Roggen helping themselves to the wood and carrying armsful of it into the building, and in reporting the fact to their employers. Immediately a complaint charging Morton and Roggen with larceny, according to a statutory form then in use, was prepared by Philpott, and subscribed and sworn to by Hebbard before myself as justice of the peace, which office I then held, and a warrant thereon was duly issued and delivered to a constable named Richardson, who was then also town marshal. I do not recall his given name, but because of the quality of his hair he was commonly called and known as "Curl" Richardson. At about half past ten o'clock on the same night, the constable appeared at my office with both the defendants in charge as prisoners and attended by their counsel, Mr. Jacob R. Hardenbergh, now deceased. Mr. Hebbard and Colonel Philpott and perhaps others were also present. There was a good deal of half-concealed anger and excitement, but there was no outbreak and no "scene." The next day was both Christmas and Sunday. Morton entered into his personal recognizance and became surety upon the recognizance of Roggen for the appearance of both of them at a specified hour on the following Monday, to which all adjournment was taken. When these proceedings had been concluded all persons in attendance left the room. There was a conference that night between Morton and his

counsel on one side, and Seth Robinson, then attorney general of the state, on the other, at the private office of the latter. Who else was there or what was done or agreed upon, I know only from hearsay. I was not present and did not know of the meeting at the time. This much, however, seems certain, namely, that Morton agreed to desist from his attempt to take forcible possession of the property in consideration that the criminal prosecution should be dropped. It was said at the time that he also agreed to waive any claim for damages on account of his arrest, but this he afterwards disputed. At any rate, at the hour to which the case had been adjourned, on Monday, the prosecution appeared and withdrew the complaint and the proceeding was dismissed.
   Two weeks later, on the 7th day of January, 1871, Morton began an action against Hebbard and Green, in the district court of Lancaster county, to recover the sum of twenty thousand dollars damages for malicious prosecution and false imprisonment. His counsel was Jacob R. Hardenbergh, with whom was afterwards associated Daniel Gantt of Nebraska City, later a judge of the supreme court of the state. Hebbard and Green filed separate answers, the former being represented by E. E. Brown and Seth Robinson as his attorneys, and the latter by James E. Philpott. A jury was waived and the cause came on for trial at a special term of the court before the Hon. George B. Lake, district and supreme judge. On the 8th day of June, 1871, there were subpoenaed as witnesses a man named Kennedy, E. P. Roggen, Major A. G. Hastings, and myself. There were findings and a judgment for the plaintiff in the sum of one hundred dollars damages and costs of suit. On the same day the amount was paid into court by Robert E. Knight, a partner of Colonel Philpott, and on the same day, also, Morton signed with his own hand upon the records of the court a receipt for it from Capt. Robert A. Bain, clerk of the court. The trial was merely formal, and it was understood at the time that what Morton wished to gain from the suit was not large damages but vindication from the accusation of larceny. Thus ended an episode about which

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 plaintiffs, 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 judgement 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

© 2000, 2001 Pam Rietsch, T&C Miller