Chapter X

Now; in order to insure even perfunctory understanding of the procedure under which Bob McGraw planned to acquire his lands, and to give an inkling of the difficulties confronting him, it is necessary that the reader take a five-minute course in land law. This is regrettable, for it is a dry subject, even in the matter of swamp and overflow lands, so we shall endeavor to make the course as brief as possible.

Section sixteen and thirty-six in each township throughout the United States are commonly designated as "school lands," for the reason that the Federal government has ceded them to the various states, to be sold by the states for the use and benefit of their public school funds. School lands are open to purchase by any citizen of the United States, and in the case of California school lands the statutory price is one dollar and twenty-five cents per acre.

Now, frequently it happens that by reason of the inclusion of certain of these "school lands" in a Forest Reserve, a Reclamation District, an Indian Reservation, a National Park, a Government Military Reservation or an old Mexican grant (which latter condition obtains very frequently in California, where the titles to many huge grants still hold since the days of the Mexican occupation) they are lost to the state. In such cases, the Federal government reimburses the state suffering such loss of school lands, by extending to the state the privilege of selecting from the public lands within its borders an acreage corresponding to the acreage thus lost by reason of inclusion in a restricted area.

The lands thus selected from the public domain in exchange for school lands lost to the state, having been taken in lieu, thereof, are known as "state lieu lands," and the lands which were originally state school lands and which have been lost to the state by reason of their inclusion in some restricted area, are spoken of as the "basis" for the exchange.

If a citizen of the United States, duly qualified, desires to purchase state school lands at the statutory price of one dollar and twenty-five cents per acre, he must file his application for a section, or such fraction thereof as he may desire, or be entitled to purchase, with the surveyor-general of the state, who is also ex-officio registrar of the State Land Office. If there are no school lands open for purchase at the time, naturally they cannot be purchased; but if, on the contrary, the state owns many sections of school lands which have been included in restricted areas, the surveyor-general will select for the applicant from the public domain such state lieu lands as the purchaser may desire. However, no such selection of lieu lands can be made by the surveyor-general unless there is a corresponding loss of school lands as the basis for the selection.

Now, this basis constituted the horns of a dilemma upon which Bob McGraw had once found himself impaled in an attempt to purchase three hundred and twenty acres of timbered land in the public domain--land which he knew would, in the course of a few years, become very valuable. Bob's restless nature would not permit of his taking up the claim under the homestead law, for that would entail residence on the property for more years than Bob could afford to remain away from his beloved desert; hence he decided to acquire it by purchase as state lieu land at a time when he knew there were no available school lands lying outside restricted areas. Mr. McGraw saw an attractive profit in purchasing at one dollar and twenty-five cents per acre three hundred and twenty acres of timber worth fully fifty dollars per acre.

Thrilled, therefore, with most pleasurable anticipations, Mr. McGraw had duly filed his application for purchase of this particular half- section, under Section 3495 of the Political Code of the State of California. He knew that, owing to the recent extension of the Forest Reserve policy, thousands of acres of school lands had recently been lost to the state, and that therefore, under the law, there could be no legal hindrance to his purchase of lieu lands--particularly in view of the fact that there were several hundred thousand acres of government lands within the state from which to make his selection!

To Bob's surprise, his application for the purchase of lieu lands had been denied, under a ruling of the State Land Office--a ruling having absolutely no foundation under any section of legislative procedure-- which stipulated that before the State Land Office could receive or grant an application for the purchase of lieu lands, the intending purchaser must first designate the basis of corresponding loss to the state of school lands.

"Bless my innocent soul," Mr. McGraw had murmured at the time, "what a curious rule! I had a notion that that was the surveyor-general's business, not mine. I had a notion that he was paid for compiling that information for the people, and not forcing them to compile it for themselves."

However, in no whit daunted by the prospect of a little research work, Bob had had recourse to the land maps in the office. To his surprise and chagrin he discovered that as fast as he brought to light a "basis" for his selection, he was informed, after some perfunctory investigation by the employees of the State Land Office that these bases had already been used! Eventually the light of reason began to sift through the fog of despair and suddenly Bob had a very brilliant idea.

"Euchred!" he muttered to himself. "I do not happen to possess the requisite amount of inside information and I have no means of obtaining it until I ascertain where it is for sale! The purpose of this ridiculous rule is to keep the rabble out of the public domain until some middleman gets a profit out of his information. I'll just give up for the time being and await results."

Bob did not have long to wait. Within a week he received a letter from an alleged land attorney, offering to locate him on state lieu lands worth fifty dollars per acre, in return for the trifling payment of one dollar and twenty-five cents per acre to the state and the further trifling payment of ten dollars per acre to the purveyor of information respecting the necessary basis for the exchange!

At the time this procedure had struck Bob as rather humorous. He was an ardent admirer of genius wherever lie saw it, and even this exhibition of evil genius, which so adroitly deprived him of his constitutional right to the public domain without the payment of a middleman's profit, rather aroused his admiration. At the time he was not financially equipped to argue the matter calmly, clearly--and judicially, and he had no money to pay for "inside information." He only knew that the rule requiring applicants to designate the basis was an office-made rule and had no place in Mr. McGraw's copy of the Political Code of the State of California.

    And the star-spangled banner in triumph doth wave,
    O'er the land of the free and the home of the knave

caroled Bob, and charged the matter up to experience, not, however, without first storing the incident away in his nimble brain for future reference.

Now, while recovering from his wound at the Hat Ranch, Bob had brooded much over the difficulties which would without doubt assail him in his attempt to acquire his lands in Owens river valley; also he had figured out to his own satisfaction the exact method by which the land-grabber was enabled to grab; or, provided the grabber did not care to retain his grab, how he could nevertheless derive tremendous profits from his control of certain officials in the State Land Office. Therefore, after his day spent in the public law library in San Francisco, Bob's brain was primed with every detail of the land laws, and had confirmed his original interpretation of the land-grabbers' clever schemes to defraud. However, not satisfied with his own opinion, he decided to seek a little expert advice on the subject, and to that end he went the following morning to his father's old friend and his own former employer, Homer Dunstan, the corporation attorney, whom he knew to be an authority on land law.

He sent in his name by Dunstan's stenographer, and presently Dunstan appeared in the reception room. He welcomed his old friend's failure of a son in a manner which bespoke forced heartiness, for old sake's sake, and a preconceived impression that the ill-dressed, pale Bob McGraw had come to him to borrow money. They shook hands and stood for a moment looking at each other.

"Glad to see you again, Bobby, after all these years. You've grown. Where in the world have you been ranging since I saw you last?" Homer Dunstan was forcing an interest in Bob McGraw which he was far from feeling, and Bob was not insensible to this.

He grinned. "Drifting, Mr. Dunstan--just drifting. Mines and mining-- mostly the latter; there's a difference, you know. It's my inheritance, Mr. Dunstan, despite all poor old dad did to make me follow in your footsteps. So I've quit bucking the inevitable and turned wanderer. Do you happen to be engaged with a client just now?"

"Well--no, not just this minute. Perhaps if you'll call--"

"No, I will not call later. My motto is 'Do it now.' Seeing that you're regularly in the business of dispensing legal advice, I'd like to take advantage of the ever-active present." He pulled from his hip pocket a tattered wallet and produced a hundred-dollar bill. "Mr. Dunstan, how much expert legal advice can you give me for that?"

Dunstan's manner underwent a swift metamorphosis. "Oh, put back your money, boy. I have an hour to spare this morning, and for your father's sake my advice to you will always be given gratis on Mondays and Fridays."

"Glad I called on Friday, even if it is an unlucky day. Your generosity knocks that superstition galley-west, so I'll take you at your word. Also I will gladly retain this century. To tell the truth I have urgent need of it for other things," and he followed Dunstan into the latter's private office. Dunstan indicated an easy chair and presented his ex- assistant with a fifty-cent cigar.

"Well, Bobby, my boy, what's on your soul this morning?"

"A very heavy weight, Mr. Dunstan. Desert land. Acres and acres of it."

"Any water?"

"Not yet."

"Any prospect?!"

"I have it bottled up, and it's all mine. Now I want the land."


"I want to acquire thirty-two thousand acres of state lieu land in Owens river valley, Mr. Dunstan."

"You cannot do it."

"Well, suppose there was a rule in the State Land Office which forced prospective purchasers of state lieu lands to first designate the basis of exchange before their applications would be received and filed. Suppose also that you wanted to turn crook and steal thirty-two thousand acres of lieu land, despite this rule. How would you go about it?"

The lawyer glanced at him keenly. "See here, son, I don't give that kind of advice to young fellows--or old fellows for that matter--even for money. I'm an honest corporation attorney, and stealing the public domain is illegal--and very, very risky."

"Don't worry, sir. When I have your advice, I will not follow it. Tell me how you would steal this land. It's a hypothetical question."

Dunstan smiled. "That's unfair--attacking a lawyer with a hypothetical question. It's rather hoisting him on his own petard, as it were. However, I'll answer it. In the first place, if I planned to go into the business of looting the public domain I would conspire with some prominent official of the State Land Office to institute such a rule."

"Good. Somebody conspired with a surveyor-general forty years ago and had such a rule instituted in the State Land Office. The state legislature, however, has never been asked to confirm that rule and spread it in black and white on the statute books."

"Well, having had such a rule instituted" continued Dunstan, "I would then have the public at a disadvantage. Through my friend in the land office I would have primary access to the field notes of the chief of staff in the field, and I would have advance information of where losses of school lands were soon to occur. In other words I would be in position to designate every basis of exchange of lost school lands for lieu lands, and the public would not. I'd give some weak brother say one hundred dollars to file on some lieu lands and use the basis which I would designate, and in the meantime I would hustle around, secure in the knowledge that I had the basis tied up. It would appear of record as used in the state land office. When I had secured a customer for the lieu land I had tied up with my dummy applicant, the dummy would abandon his filing in favor of my client, I would collect the difference between the statutory cost of the land and the price my client paid me for it, whack up with my friends in the land office and consider myself a smart business man."

Bob nodded. "I figured it out that way also. Now, suppose an outsider-- myself, for instance--succeeded in getting his application filed without designating the basis for the exchange of lands, and the surveyor-general has issued me a receipt for my preliminary payment of twenty dollars on account of the purchase of the lieu land--what then? When he discovered I was an outsider, could he reject my application?"

"Well, he might try, Bob. But with his receipt in your possession, that would be bona-fide evidence of an implied contract of bargain and sale between you and the State of California. You could institute a mandamus suit and force him to make the selection of lieu lands for you."

"I figured it out that way" said Bob musingly. "The only rift in the surveyor-general's lute is the fact that while he has never yet bumped up against the right man, he is due to so bump in the very near future. However, Mr. Dunstan, I do not think our present surveyor-general is doing business with the land ring. I think the guilty man is one of his deputies through whom ninety-nine per cent of the office routine is transacted, and the land-grabbers have him under their thumbs."

"Then why not go direct to the surveyor-general with your troubles?" queried Dunstan.

Bob shook his head. "No hope in that direction. The office records show all bases used, and the deputy--the surveyor-general, in fact--can find defense for their arbitrary ruling in the matter of designation of the basis--by claiming that their office force is not large enough to permit of such extended search of the records; hence they turn their records over to the applicant of lieu lands and let him search for himself. The surveyor-general, being honest, will be hard to convince that his deputy is not--particularly since the deputy is probably an old friend."

"It's a peculiar condition" said Dunstan. "The worst that can happen to the deputy is to lose his job, the dummy entryman can abandon his filing at any time he may elect, and there is no law making it a felony to accept money in exchange for information--if you do not state where you acquired it. How are you going to stop this looting?"

"I'm not quite certain that I want it stopped--right away" said Bob, and grinned his lazy inscrutable smile. "I want to do a little grabbing myself, only I want to do it legally. I have a scheme worked out to do this, but I want you to confirm it. Just now you schemed out a plan to get public lands illegally, and you ought to be able to scheme a plan to get them legally, operating on the state lieu land basis. I want thirty-two thousand acres of desert land and the law only allows me a selection of six hundred and forty. I want to get this thirty-two thousand acres without corrupting any weakling in the employ of the state, without paying money to dummy entrymen, without designating the basis for the selection of my fifty sections, without antagonizing the land ring and without disturbing that rule of the State Land Office, can it be done?"

Dunstan frowned at his visitor. "Of course it cannot be done" he retorted sharply. "Why do you ask me such fool questions?"

"Because it might be done--with a little luck and some money."

Dunstan shook his head. "There is only one way for you to acquire desert land, Bob, without disturbing the rule in that land office. You'll have to file on a half-section only, under the Desert Land Law of the United States of America, paying twenty-five cents per acre down at the time of filing your application. Then you must place one-eighth of it under cultivation and produce a reasonably profitable crop. You must spend not less than, three dollars per acre in improvements, and convince the government that the entire tract, if not actually under irrigation, is at least susceptible to it. That accomplished, you can pay the balance of one dollar per acre due on the land, prove up and secure a patent. That's the only way you can secure desert lands without doing some of the things you wish to avoid doing."

Bob shook his head. "Too slow, too expensive and generally irritating. Why, I'd have to live on the land until I could prove up!"

"Well, then, Bobby boy, put your scruples behind you and pay somebody to live on it and prove up for you." "No use" mourned Bob. "I can see myself at the head of a long procession of desert-land enthusiasts, bound for McNeill's Island, and I'm too young to waste my youth making little rocks out of big ones. Even if the attorney-general didn't have me on the carpet, I'd have to ride herd on one hundred dummy entrymen with a Gatling gun, or else equip each one with an Oregon boot. My land lies in a devil's country and I don't think they'd stay. You see, Mr. Dunstan, were it not for that confounded rule I mentioned, I could purchase a full section of desert land in the public domain, under the provisions of the state lieu land law. Under that law the land would only cost me one dollar and twenty-five cents per acre, while under the United Slates Desert Land Laws it would cost me not less than four dollars and a quarter per acre. Too much money for Bob McGraw. Now, Owens river valley is pure desert, Mr. Dunstan, and it lies, or will lie, very shortly, in the public domain. It is not agricultural land, neither is it coal-bearing nor timbered, so I can purchase it by the full section, which will only require fifty entrymen. Besides, there have never been any entries made heretofore in the section of the valley that I have my eye on, and I'd like to get my land in one strip without having it checker-boarded with adverse holdings."

Dunstan smiled a little wearily. "But we're not getting anywhere, Bob, my boy. You're simply wasting your breath. Just what nebulous idea for the acquisition of this desert land have you floating around in that red head of yours? Now, then, proposition Number One."

"I cannot oppose that rule. I must sneak my applications in and get them filed and secure a receipt, when I will be in position to force the attorney-general to make the selections for my clients."

"Oh, they're clients, eh?" said Dunstan. "I thought they were to be dummy entrymen."

"They are--but they don't know it--and not knowing it, they will not be committing a crime."

"Ignorance of the law excuses nobody, Robert. But proceed with proposition Number Two."

"My clients are to be paupers--so I must pay for the land which they will file upon. Hence I shall need money."

Homer Dunstan figured rapidly on a desk pad.

    Notarial fees on fifty applications @ $  .50 $  25.00
    Filing fees    "   "     "          @   5.00   250.00
    First payment      "     "          @  20.00  1000.00
                                          Total, $1275.00

"It will take $1275 to start you off, Bob, presuming, for the sake of argument, that your filings are accepted--which, of course, they will not be."

"Oh, I have the twelve seventy-five, all right" said Bob confidently.

"Well, after your applications are passed to patent, you will have to put up $780 more for each section, or $39,000 in all. Have you provided for this additional sum?"

"Why, no sir. I was going to ask you to lend it to me."

"Indeed! Well, assume that I'm that soft-headed, Bobby, and proceed to proposition Number Three."

"Well, under the law, my applications must be acted upon within six months after filing. The surveyor-general must approve or disapprove them within six months, and if he approves them--"

"Which he will not" promptly interjected Dunstan.

"I'll sue him and make him. Well, when the applications are sent on to the Commissioner of the General Land Office at Washington for his ratification of the exchange of the lieu lands, they may be hung up there a long time--years, perhaps--"

"Certainly. The land ring will see to that."

"Then, don't you see, Mr. Dunstan" said Bob, brightening, "I'll have lots of time to get that balance of $39,000 together."

"I'm so glad" said Homer Dunstan. "Then I won't have to lend you the money after all. Well, when you're an old man, Bobby, and that red head of yours is snowy white, your lands will be passed to patent and--"

"But the peculiar thing about this operation, Mr. Dunstan, lies in the fact that the land ring will readily ascertain my financial condition, and that of my clients--"

"In which event, my dear boy, your lands will be rushed to patent right away, you will be notified that they are waiting for you to pay the balance due on them within, thirty days, and if at the end of thirty days you do not pay that $39,000, your applications lapse automatically and your initial payment will be forfeited to the state as liquidated damages."

"I fear that is just what will happen. That is why I want to know if you are prepared to lend me $39,000 to call their bluff. I will assign you a half interest in a certain water-right which I possess, as security for the advance. My water-right is worth millions."

"It will have to be, if I am to consider your suggestion seriously. Get your fifty applications passed to patent first, however. Then see me, and I'll lend you the money you require, provided I find upon investigation that the security is ample. Is your water-right developed?"

"No, sir. I've just filed on it."

Dunstan permitted himself a very thin smile. "You're your father's son, Bob. You see visions and you'll die poor. I am firmly convinced that you're honest, but as firmly convinced that you're chasing a will-o'- the-wisp--so I hold out very little hope for you in the matter of that loan."

"But my water-right is good for ten times the amount" pleaded Bob desperately, and produced T. Morgan Carey's letter to bolster up his argument. "All I need is money to develop it."

"And in the meantime it's worth ten cents. Bob, you weary me."

"I'm sorry, sir. You're the only human being in this world that I can come to for help; and I never ask help of any man, unless I can pay him well for his trouble, And I think I can pay you well--I know I can."

Dunstan eyed him more kindly. "Your father was a visionary, Bob, only he looked the part. You do not. I have difficulty in convincing myself that you're insane; but surely, Bob, you must admit that no sane man would seriously consider your proposition. Tell me how you expect to induce fifty paupers to apply for land for you, to do it in good faith and be within the law, and yet hand the land over to you. Dang it, boy, the thing's impossible. You can't do it."

"I can" replied Bob McGraw doggedly. "I can."

"All right then, you do it. Put that trick over, Bob, and I'll take off my hat to you."

"You may keep your hat on your head. I want $39,000."

"Do the impossible and I'll give it to you--without security."

"Taken" said Bob McGraw. "I'll hold you to that, Mr. Dunstan. I'll simply round up fifty paupers, or their equivalent, with a constitutional right to purchase state lieu land and permit me to pay for it for them. Then after I have secured the land for them I will buy it back from them--"

Homer Dunstan roared with laughter. He pointed a bony finger at Bob McGraw.

"Young man, the right to purchase state lieu land is a strictly personal one and it is unlawful for one person to purchase for another. Of course you can buy it back, Bob, but the attorney-general will have a leg-iron on you before the ink is dry on your check. Transfer of title under such circumstances would be looked upon as bona-fide evidence of fraud, unless your clients could prove conclusively that they had parted with their lands for a valuable consideration--"

Bob McGraw in turn pointed his finger at Dunstan. "Ah, that's the weak point in the law, Mr. Dunstan" he exulted. "A valuable consideration. I can beat that. I'll give my clients ten dollars per acre for lands which cost them one dollar and a quarter, and there isn't a lawyer in the land--yourself included--who wouldn't consider that a valuable consideration."

"McGraw," said Dunstan rising impatiently, "you're a consummate ass! Where the devil do you expect to get $320,000 to buy their land from them? I suppose you think I'll help you with that, also. Your stupidity annoys me, Robert. Damme, sir, you're light in the upper story."

Bob McGraw laughed aloud. "I won't need it. All I shall ever ask of you is that first $39,000. The water I have bottled up in the Sierra will make the land worth three hundred dollars an acre. Don't you see where I can afford to pay ten dollars per acre for it?"

"You can't do business on gab, McGraw. Money makes the mare go, and you cannot induce fifty men to waste their constitutional right to lieu land on your bare word that your water-right will make a desert valuable. You'll have to take 'em down there, at your own expense, and show 'em--"

"Old maids in New England buy stocks in wild-cat prospect holes in Nevada. Do the promoters have to bring them out to see the holes?"

"Nobody but a fool or an idiot would listen to your crazy proposition, and fools and idiots are not qualified under the law to do anything except just live and try to avoid being run over by automobiles. But granted that you can do all these things, what are you going to do with your land when you get it?"

Bob McGraw stood up and leaned both brown hands on the edge of Homer Dunstan's desk. The genial mocking little smile was gone from his face now, for Dunstan's query had brought him back from the land of improbabilities into the realm of his most ardent day-dream. He raised his hand in unconscious imitation of every zealot that had preceded him down the ages; the light of the visionary who already sees the fulfillment of his dreams blazed in his big kind brown eyes.

"I'm going to give it to the lowly of the earth" he said. "I'm going to subdivide it into ten-acre farms, with a perpetual water-right with every farm. I'm going to build a town with a business block up each side of the main street. I'm going to install a hydro-electric plant that will carry a load of juice sufficient to light a city of a million inhabitants. I'm going to reclaim the desert and make it beautiful, and I'm going to have free light and free fuel and free local telephone service and free water and, by God! free people to live in my free country. I'm going to gather up a few thousand of the lowly and the hopeless in the sweat-shops of the big cities and bring them back to the land! Back to my land and my water that I'm going to hold in trust for them, the poor devils! Back where there won't be any poverty--where ten acres of Inyo desert with Inyo water on it will mean a fortune to every poor family I plant in my desert."

"Why?" demanded Homer Dunstan smiling.

"Why?" Bob McGraw echoed the attorney's query. He gazed at Dunstan stupidly. "Why, what a damn-fool question for you to ask, Mr. Dunstan! Isn't it right that we should look to the comfort of our helpless fellow-man? Isn't it right that we strong men should give of our strength to the weak? What in blue blazes are we living for in this enlightened day and generation if it isn't to do something that's worth while, and to leave behind us at the last something that hasn't got the American eagle stamped on it with the motto 'In God We Trust.' Ugh! How the good Lord must hate us for that copyrighted chunk of sophistry I It's a wonder He doesn't send His angels down to make us tend to business."

"Well, I'm not going to worry about it" retorted Dunstan crisply. "I'm too busy, and you're Johnny McGraw's boy Bob, so we won't quarrel about it. Good luck to you, old man. Get all the fun out of life that you possibly can--in your own way--and when you get your land and can show me, I'll take a $39,000 mortgage on it, at eight per cent. Now, good-by and get out. I'm a busy man."

Bob McGraw took up his big wide hat, shook hands with his father's old friend, and with heightened color withdrew. Out in the hall he paused long enough to swear; then, as suddenly, the old mocking cheerful inscrutable smile came sneaking back to his sun-tanned face, and he was at peace again. He had suddenly remembered that he was Bob McGraw, and he had faith in himself. He thought of Donna, waiting for him in lonely San Pasqual; he raised his hard brown fist, and in unconscious imitation of Paul Jones he cried aloud:

"I have not yet begun to fight!"