USA > Nebraska > Lancaster County > Lincoln > Lincoln, the capital city and Lancaster County, Nebraska, Volume I > Part 10
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"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 at 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 Soo feet unless brine of 50° 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 $12,000.00 and it will cost them several thousands more to complete the work. The geological record pro- vided 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 was 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 cannot 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, you 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 adventur-
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ers in making further experiments. I therefore ask at your hands such legis- lation as will tend to push forward this work to a rapid completion."
This appeal, like the former, fell upon deaf ears, and, without adverting to the subject, the Legislature on the same date on which they had been for a second time reconvened, adjourned without delay. At the ensuing regular session of the Legislature in 1871, Governor Butler 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 abandoned, but the stream continues to flow int 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 not attempted to verify or disprove either 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 after- wards sunk by the city, on Government, then Market, Square, for the purpose of fire protection.
Not long after the execution of the lease to Tichenor and Green, the former disposed of his interest to Horace Smith of Springfield, Massachussetts, a mem- ber 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 controlled by the lessees. But not deeming the business of manu- facture at Lincoln so far developed as to require his personal attention, 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 land 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 examina- tion 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 man and Morton was never accused of jacking 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 secur- ing these advantages, Morton organized an expedition in December of that year. There was then no direct communication between Lincoln and Nebraska City
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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. Cord wood, 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 near 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 was thereon 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 10 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 appear- ance of both of them at a specified hour on the following Monday, to which the adjournment was taken. When these proceedings had been concluded all per- sons 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
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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 cer- tain, namely, that Morton agreed to desist from his attempt to take forcible pos- session 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 of January, 1871, Morton began an action against Hebbard and Green, in the District Court of Lancaster County, to recover the sum of $20,000 damages for malicious prosecution and false imprisonment. His counsel was Jacob R. Ilardenbergh, 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, Maj. A. G. Hastings, and myself. There were findings and a judgment for the plaintiff in the sum of $100 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 vindi- cation 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. \ 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 eighty-one. In that court Judge E. Wakely, 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
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at Washington and cancelled. 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 pri- vate sale prior to the passage of the enabling act, and that the lands in suit having been sold before that time, section eleven 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 Hon. R. H. Brad- ford. 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 opinion of the state Supreme Court, both majority and minority, and disposed of the case upon its merits, a somewhat unusual procceding, 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 com- petent to determine its own powers and jurisdiction, and it is difficult to under- stand 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, hold- ing, after a view 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 have 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 exception 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 quantitative and
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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, 1,000 tons of which could be col- lected from spontaneous crystallization around the edges of the basin. This quantity would have been equal to 220,000 statutory bushels, but at the royalty reserved in the Tichenor and Green lease, should have yielded the state an annual revenue of $4,400. 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 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.
SUBSEQUENT WORKINGS
Charles G. Bullock maintained the plant for ten years, beginning in 1874, with very slight success. An overflow from Salt Creek damaged his works to the amount of $1,000 and dissolved his marketable salt. In 1885 Jesse T. Green attempted to revive the works, but again the elements of nature stopped the effort. A heavy fall of rain worked the havoc in this latter case. The State Legislature of 1885 passed an act "to provide for the sale and leasing of the saline lands and the development of the saline interests of the State of Nebraska" and in December of the same year a contract was made with M. C. Bullock, of Chicago, for the sinking of a well 2,000 feet in depth, for which work he was to receive the sum of $10,125. This well was started in May, 1886, and the work ended in August of the next year. The result of the boring was very dis- appointing, as no brine of sufficient quality to be worked was found. The salt water tested only 35° at the highest and in other parts of the coun- try where salt springs were located and salt manufactured 95° was considered the minimum for successful manufacture. The coming of the rail- road brought cheaper salt, also, so that the manufacture of the commodity in Lancaster County, so long dreamed of by the people and advertised to the advantage of the new state, was given up as hopeless and has never been renewed. As stated before, the basin and principal wells were taken over in connection with an amusement resort. Oak Creek's waters were diverted into the old Chester Basin and a large lake now covers the ground where the faithful enthusiasts worked and where their hopes died.
Upon the banks of this beautiful lake, once barren and forbidding, has been planted a great variety of deciduous and evergreen trees, flowering and ornamental shrubs, all of which are growing luxuriantly ; large sums of money have been expended in the erection of buildings suitable for a pleasure resort.
The State Journal of April 13, 1916, announces that the Traction Company has leased the lake and grounds to be used as a pleasure resort.
In all of this we see a striking illustration of how "man proposes, but God disposes."
CHAPTER VI
THE TOWN OF LANCASTER
The Government survey of the the land upon which Lincoln is now located was made in the year 1856 and, of course, the feature of the survey was the report made upon the salt springs. The stories of fabulous wealth spread to all parts of the Middle West, and for that matter, into the East. Many an adven- turer and pioneer trekked to Nebraska Territory, fully expecting to return to his eastern home with pockets bulging. In 1856 the Crescent Company was organ- ized at Plattsmouth, Neb., and Capt. W. T. Donovan, then commander of the steamer Emma, running from Pittsburgh to Plattsmouth, was appointed to represent the company at the newly discovered salt basin. Donovan. accompanied by his family, came and settled on section 23, on the west bank of Salt Creek, just south of the mouth of Oak Creek. During the same summer William Norman and Alexander Robinson, representing another company, came and located on section 21, near the salt basin, but in the next spring they left, dissatisfied with the outlook. As stated before, the attitude of the Pawnee Indians became very threatening during 1858 and Captain Donovan himself left the new settlement and retired to the Stevens Creek colony for safety. In 1861 he returned and settled in the vicinity of the salt basin once more, at a point near the present state hospital, then called Yankee Hill.
In the autumn of 1859 a meeting had been held to consider county organiza- tion and a committee, composed of A. J. Wallingford, Joseph J. Forest and W. T. Donovan, were appointed to select a site for a county seat and there lay out a town. In accordance with their instructions the mnen selected the site of Lincoln, and called it Lancaster. It is said that Donovan gave the name. He had previ- ously, in 1857, named his first settlement at the basin Lancaster.
On July 2, 1861, Captain Donovan introduced Mr. W. W. Cox to the basin and the latter, in company with Darwin Peckham, began to boil salt on August 20th in section 21. During the winter, when the business of trading salt was at a standstill, Cox quartered with Donovan at Yankee Hill.
During the year 1862 John S. Gregory arrived at the basin and also opened up a salt business on section 21. In the latter part of the month of May Milton Langdon and his family arrived and settled on the north side of Oak Creek, near its junction with Salt Creek.
The passage of the Homestead Act in February, 1862, brought many new settlers into this county, where they took up their claims, some of them staying and others moving on after a few months.
In the fall of 1861 the first frame building in Lancaster County was begun and finished during the following spring. W. W. Cox, by trade a carpenter, did
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the construction work for Richard Wallingford. The doors were of black walnut.
During the winter of 1862-63 the family of Joseph Chambers was presented with a son, which child was probably the first born within the limits of the present City of Lincoln. The child lived only a short time.
In the spring of 1863 John S. Gregory constructed a small frame house, in the vicinity of the present West Lincoln, and about the same time was made postmaster at the basin; the office was called Gregory's Basin. Mr. Gregory en- gaged in the making of salt, along with William Imlay and Milton Langdon. Mr. Gregory was elected to the Territorial Legislature for Lancaster County on October 13, 1863.
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