Western Waters, 2022

ONE

Try to stop the wind. Local lore believed that the Ute Indians, who had occupied the area in the late 1800s, possessed twenty-three words for wind.

The wind blew through this valley unblocked for mile after mile. The best that could be done to mitigate the wind was the placing of rows of wood snow fences bordering the roadways, preventing snow drifts. Some here approved of the snow fences; many did not. They were inefficient. It is unknown if the Utes had a word for snow fence.

The Merripass River is a stately presence flowing north to south through the valley, and when you stand at the Merripass’s edge, your eyes are drawn to the east, where the mountains are high enough to shine with wide remnants of white snow. To the west the valley is edged by a low range of green and brown hills. The land between is an unirrigated mixture of baseline forage—grass, clover, weeds, alfalfa—on which cattle graze.

Trout in the river are plentiful. On certain days, of course, the wind prohibits anything close to a full cast on the Merripass. Line and fly go sideways. But on a good day, there could be no better spot for a fisherman to be.

William Markham could almost smell the snow on the eastern peaks. The water in the river didn’t arrive from those peaks, but the occasional cool breezes did. These breezes did not hamper the toss of a fly line. At least not William’s. He positioned himself on one of the stream’s dry islands of compact pebbles and peered toward the pools of water formed by bush and logs near an ancient cart bridge.

William perceived a silver flash in the pool. Or sensed it. He cast toward the pool.

They would interrogate him about that.

William cast toward the pool several times and then raised the fly rod and maneuvered through the flow of water to a spot of loose pebbles at the western edge of the stream. He took his time. He held the fly in his hand and contemplated changing it. Caddis? Green Drake? He cast back toward the other side of the stream.

They would interrogate him about that too.

You couldn’t see them, of course, but the wide valley was crisscrossed with a maze of complex property lines. The valley’s specific property boundaries came to William’s attention abruptly when, after an unprofitable cast toward the deep pool, he was struck on the upper thigh by a stone thrown with great force.

“Outta my river.”

A tall rangy man in rolled-up shirt sleeves and jeans stood up the bank away, holding a rock in each hand.

William, stunned, said nothing. You can own a river?

A woman stood beside the man. William saw she wasn’t as dangerous. Not a sexist opinion. Just that she was armed with only a single stone.

Joint ownership? They divorce, each gets half the water?

William wasn’t going to go anywhere. He was a resolute man who, at times, could be foolishly unafraid. Some called him stubborn.

“My property line includes the river.”

“Sush,” William said. William prepared to cast, downstream, distant from the man. “You’ll disturb the fish.”

Three quickly thrown stones landed near the pool William was fishing. He was certain he saw streaks of movement escaping the stones’ threat. William studied the man and the woman. They were pleased with their aim. William climbed out of the river away from his assailants and sat himself on a warm flat stone of granite. He inhaled deep breathes.

William had lived upriver for years. He knew the valley. He knew this:

The era of the Utes, unencumbered land, and unnamed mountain peaks was gone—the mountains had been named, the Utes had been exiled, and the old-time unencumbered land was covered by unseen territorial limits and demarcations that overlay the fish in the river. He fished beneath a shroud of postal zones, telecom districts, zoning districts, invisible easements, rights-of-ways, and boundary lines flung across the earth by feds, state, and counties. He fished among water districts, taxing authorities, sanitation districts, emergency services boroughs, subgovernmental enclaves, treaties, and, he suspected, encumbrances he would never hear of. He was bitterly surprised by his assailants’ assertion of his property’s boundary.

He stood up from the rock. His upper thigh burned from the force of the blow.

William was a proud, resolute man who, at times, could be foolishly unafraid. Some called him stubborn. He engaged an attorney.

TWO

William was told there would be a deposition or two in preparation for trial.

But he was very much surprised to watch a video of himself standing in the Merripass and casting into the deep pool by the wooden bridge. The picture was clear. The date and time of shooting were displayed in the right-hand corner of the screen.

When the video commenced, William looked with distress at Lewis across the wide table from him. Lewis caught his look. “We prepare our cases well,” Lewis said. Lewis represented Laid Goth, the landowner/river owner.

William nodded toward the screen. “You’re invading my privacy.”

“I’m recording a trespass on my client’s land.”

“Not land, actually,” Tucker said. Tucker was William’s attorney. William didn’t like either of them.

“Right,” Lewis responded. “My client’s river.”

“Why record this?” William asked.

“Visible proof of the trespass. No CCTV out there. We hire videographers.”

“That video could have been filmed anywhere.”

“Clock the bridge. The row of pines. Landmarks. On the witness stand, our videographers are superb.”

There was silence as William, Tucker, Lewis, and the stenographer watched the video.

William’s immediate desire was to be on the water. Or at least far from this room. He was uncomfortable watching himself. He was uncomfortable with the fact he had put himself in this position. He detested nosy, rude questions. Which was maybe why he wasn’t fond of attorneys. He assumed Tucker and Lewis were otherwise fine people.

“You fish Mr. Goth’s river frequently?” Lewis inquired.

“I fish the Merripass when I can.”

“Right. And all the time you fish there, you ever see any cargo boats on the river?”

Okay—Tucker had explained the legal issues they were mired in. “None that I know of.”

“If you saw a boat transporting lumber down to Texas, you’d remember it?”

“I’d have to see it first.”

“You don’t believe commercial boats use that river?”

“I enjoy no beliefs one way or the other on that subject.”

“You ever travel by boat down the Merripass?”

“I have no reason to attempt such a thing.”

Lewis pointed at the screen. “That cast there.”

Lewis replayed the scene. William and Tucker watched. William was attentive, aware of the abrupt change in questioning.

“Why did you cast to the other side?”

“That’s where the fish were.”

“Government fish.”

William made no response. Snide was the word that came to mind.

“Colorado Department of Wildlife stocks the Merripass,” Lewis said.

What was the fool getting at? “I released the fish. Gave it back to the damn government.”

William eyed the man in blue work shirt and loosened tie who sat across the polished table from him and wrote on a yellow legal pad. He didn’t look up. William concluded Lewis could be a nasty adversary. Both attorneys were young, pleased with themselves.

“The west boundary on my client’s deed includes the river,” Lewis said.

“The lawyer who prepared that deed needs schooling,” Tucker replied.

“I prepared the deed.”

“What I said.”

As he questioned William, Lewis had been reading from notes on his yellow legal pad and from whatever information was displayed on his computer screen. He released a breath of air, a sigh perhaps, and studied the screen in front of him. He raised his eyes to William.

“What type of fly?” Lewis asked William.

“Caddis nymph.”

“Size?”

“Fourteen.”

“Too large. Those waters call for sixteen. Maybe eighteen.”

“The light was changing. I hurried to switch flies. Couldn’t find the sixteen.”

“Me, I use a fly box. Store the flies by size.”

“But then you’re mixing Mayflies in with your Adams.”

“Yeah well. When I retire I’ll sort them by size and type.”

“Tedious endeavor.”

“Maybe.”

“Might as well be a librarian.”

“Ha. I like that.”

Lewis leaned over the table to Tucker. “Okay? Let’s not drag this out. No need in court for boring offers of proof, video authenticity, testimony from the cameraman, right?” He raised an eyebrow.

Tucker nudged William. “Agree?”

William agreed.

Lewis bent down to a briefcase on the carpet beside his chair and spent a moment riffling through files. He sat up and placed a short pile of documents on the table to the side of his computer. William’s eyes focused on the pile of papers. Why did he ever involve himself in this? Lewis turned to the stenographer. “I’m not marking these into evidence at this point.”

The stenographer mouthed a silent “Okay.”

William waited. Tucker tapped his arm and indicated the papers.

“Your attorney has discussed these documents with you?” Lewis didn’t wait for an answer. He patted the stack of copy paper in front of him. “Photocopies of the Springs Gazette. Eighteen seventy-six.” He lifted a yellowed paperback-sized pamphlet. “Published diary of one Captain Raynard of the 3rd U.S. Cavalry Regiment. Dated August second, 1876. Stationed for a half year in the newly created Colorado Territory.”

Yes—Tucker had discussed the documents with him.

From the beginning William had been annoyed by Tucker’s approach to the trial. Tucker seemed to treat the matter as an intellectual puzzle, an enticement of some academic significance. A legal riddle to be solved. It was fun for him. The plaintiff and defendant involved in the case didn’t seem to factor in.

William saw no puzzle, no game. He viewed the trial as a chance to return him to the river. To not have stones thrown at him.

“Think of it as a competition,” Tucker had said.

Competition?

“A contest in which we prevail by burying Lewis with our evidence. Water laws in this state are the rules we play by.” Tucker must have caught a look on William’s face. “Trust me, Bill. I know where the goalposts are.” The two men had been seated in a meeting room in the office Tucker shared with three other attorneys. He lifted a small stack of papers from the table, becoming professorial. “Evidence right here. Photocopies of the Springs Gazette. Eighteen seventy-six.” He lifted a small booklet. “Published by Captain Raynard of the 3rd U.S. Cavalry Regiment.” He sat back in his chair. “Here’s what’s important. It’s dated August second, 1876.”

Tucker handed the diary to William. William took out the eyeglasses he wore when slipping leader through a hook eye. “Eighteen seventy-six,” he said quietly. He didn’t know what it meant. He handed it back to Tucker.

“Bill, here comes the beauty part.” Tucker loved this. “The Merripass. In 1876 the Merripass was the southward supply route for the fur trappers, traders, loggers hereabouts. Can you picture it? Those folks bundled up their product, latched it to a raft or barge, and floated it downstream to market. The newspapers loved it. Big commerce. No road tax. Ha. No water-usage fees. That river was their livelihood. That river carried boats. Commercial traffic.” He smiled, making a point. “The magic word here is ‘navigable.’”

Tucker’s voice displayed enthusiasm for the game. William silently pictured how fat the cutthroat trout must have been in 1876.

Tucker was spirited. “Those waters that were navigable when Colorado entered the Union are to this day treated as navigable waters. Here’s the game, Bill. The courts hold that”—he leaned over an open casebook—“‘the States, in their capacity as sovereigns, hold title in the soil of rivers really navigable.’” He raised the book off the table. “Shively v. Bowlby.” He looked up at William, proud of himself. “Goth doesn’t own the river bottom. The State of Colorado does. Holds it in trust for the people of the state.” He clapped his hands. “Fish your heart out, Bill.” This was his fun. “And guess what day Colorado entered the Union.”

The game, however, did not proceed as Tucker had envisioned. The opposing team was in the way.

Lewis lifted one of the newspapers. “You’ve read them. So. You think the articles describe river traffic?”

“Objection. William has no knowledge of that. The two experts I endorsed as witnesses will answer your questions perfectly.”

“Of course. But, Tucker, allow me a few queries.”

Tucker shrugged and nodded.

“Let the record reflect that the attorney for William Markham shrugged in approval.”

Lewis tilted his head toward William.

“This supposed river traffic. You don’t how long it lasted, do you? You admitted in a roundabout way there’s no such traffic today.”

“Beyond my ken.”

“And if there was river traffic, you don’t know how far it traveled downstream? Upstream?”

“I do not.”

“Did a traveler have to purchase a ticket?”

No answer.

“Was there a schedule of arrivals and departures?”

“Please, Lewis. Ask those questions of Professor Schmidt and Dr. Fellows during the trial.”

William hoped that the professor and the doctor would testify in the manner Tucker assumed they would. Trouble was that Lewis had shown himself to be a clever fellow. He had thought of issues Tucker hadn’t mentioned. Tricky water here. How far along the river was the commerce? How often did the boats sail? Who operated the boats? William speculated there was a point at which a bare minimum of river traffic would not suffice to be termed commerce. A random river trip here and there was surely of little legal consequence.

The damn video played again. The audience observed the blue water, blue sky, distant snow, and William’s cautious efforts in the river.

“You cast sidearm?” Lewis inquired, nodding toward the screen.

“Into a breeze. See the grass? There’s wind.”

“Heavy line?”

“Six weight.”

“Okay.” Lewis pondered that. “Split shot help?”

“Used a bead-head nymph.”

“Fine. But—”

Tucker interrupted. “Lewis, friend. Is this relevant?”

“You fish?”

“Some.”

“You saw that cast.” Lewis grinned at Tucker. “Can you do that?”

Tucker made a face, lifted his cell off the table, waved it in the air. “Time to take a break.” He closed the notebook in front of him, shut his laptop, stood and made a show of stretching. He opened the door and exited the room. The stenographer lifted the little machine aside, stood, nodded at the men and left the room.

William and Lewis contemplated each other. “Coffee?” Lewis asked.

“No, thank you.”

Apart from manifesting the unpleasantness of trial preparation, Lewis seemed a reasonable man. William had never previously employed an attorney to commence a lawsuit. He had pondered off and on whether he had acted too precipitously in the matter. He was a man of solitude, and there was no solitude here. If he were truthful, he might admit that he simply did not want to make himself available to be in judgment by his peers. Or anyone else. The lawyers, the clerks, the judges, the whole woeful spectacle disturbed him.

William lacked confidence in the case. Chatting before the deposition began, Lewis mentioned every trial was a crapshoot. “Fifty-fifty is how I see it.” William perceived that remark as a possible opening toward negotiation.

William did not regard himself as fainthearted or irresolute. He was being sensible. Any sensible man would loathe being at this table.

“We could settle,” he said quietly to Lewis. “Avoid the expense.”

“William, sir. The expense is the best part.”

William smiled at that. “Maybe your client would look upon you kindly if he saw you were striving to save him money.”

“Mr. Goth already looks upon me kindly. That’s why he hired me and not someone else.”

“Wouldn’t do any harm to ask him.”

“He’d think it cowardly.”

“Unusual man.”

“He owns the riverbed. He’s a bulldog when he’s protecting his property.”

Lewis angled his head. William caught a hesitation. “You don’t seem certain.”

Lewis didn’t deny William’s assertion. “I’m no one’s fool. Every trial is a rabbit hole.”

“You could lose as easily as I.”

Lewis shook his head at that. Hesitation was a sin he would not admit to. But William had discerned a momentary uncertainty.

“Talk to him. Agree to a court order. He prohibits trespass on his land. He allows wading in his water.”

Lewis listened. He was giving the notion thought. He made no reply.

“Merely speak to him.” What was preventing Lewis from having a simple conversation with his client?

“He owns the riverbed,” Lewis repeated. “That river is a bone he’ll never let go of.”

William’s face must have displayed the emotions he felt. Lewis’s eyebrows raised up. William didn’t get it. What was preventing Lewis from engaging in a straightforward conversation with his client?

“He won’t settle,” Lewis said again.

“Tell him you’ll walk off the case.”

“Not my style. Reputation in these small communities equals cash flow.”

“That little spot by the bridge is Eden. I love it. You love it.”

“Eden. Nice word.”

“Explain to him. How important it is. The spot every fisherman craves.”

“Oh he knows that all right. He sees them out his window.”

William had blood pressure issues. Who didn’t? He was angry, and anger was a medical sin. To hell with it. “Try getting him to settle.”

“Can’t do it.”

What was preventing Lewis from doing that? “You won’t even ask?”

“I can’t.”

William couldn’t fathom the reluctance of Lewis. He closed his eyes and was silent. Then he looked up at Lewis.

“But why not?”

“If I did that, that SOB would never allow me to fish on his river again.”

THREE

William fished the Animas, the Dolores, and the San Juan during the years the case was on appeal. William hadn’t a clue if those rivers were navigable or not.

Paul Kennebeck lives in Denver, Colorado, with his wife, Phyllis. He is a writer who has published numerous short stories, was a recipient of a National Endowment for the Arts award, and recently published a novel, A Spy in Quarantine.