Introduction

Robert F. Fawcus was shot May 26th 1895 by neighbour Fernando 'Fred' Bozarth in a dispute over water rights near Chimney Rock, Nebraska.

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The Story

The story of the murder of Robert Fawcus Fawcus is told best by the affidavit of the accused, Fernando Bozarth, as to the expected testimony of Laura Watsabaugh, his sister, who was ill with the cholera in Omaha, and could not attend the scheduled trial. That affidavit is reproduced in full below.

What the affidavit does not say is that Fawcus was one of the incorporators of the Chimney Rock Irrigation, Water Power and Canal Company, the predecessor of the Chimney Rock Irrigation District. The Company was formed and the ditch built about 1889.
Page 1 of Amended Article of Incorporation of Chimney Rock Irrigation and Water Power Company, Oct 28, 1890
Page 2 showing signatories including Fawcus (line 14) and Bozarth (line 19)

Fawcus was an Englishman, and according to Aub, was a "remittance man." That is, he was the second son of a English family, whose eldest brother had offered to pay him a monthly "remittance" if he would leave the country. He came to America thinking himself a cut above the rest of the settlers. The worst aspect of this arrogance was that he took water out of the canal whenever he wanted it, without consulting either the officers of the Canal Company, or the farmers below him on the ditch, John Watsabaugh and Fernando Bozarth. It made no difference to him that Watsabaugh, or his brother, Bozarth, might be irrigating. He would take all of the water, and when he was finished irrigating his crops, instead of taking the dam out and turning the water back down the ditch, he would let the water run into some ponds on his place.

The affidavit details that in the summer of 1894, when John Watsabaugh was at Hemingford working on the railroad, Fawcus propositioned Watsabaugh's wife Laura, who of course turned him down. She told him she was going to tell Fernando, and Fawcus threatened to kill Fernando if he came around to bother him about it.

Nothing happened until the spring of 1895, when Fawcus decided to have a boating party. His ponds were not deep enough for boats, so he dammed up the outlet from the ponds, and dammed up the Chimney Rock canal and cut the bank on Saturday afternoon to fill up the ponds. When he arose on Sunday morning and found the ponds unfilled, he got on his horse and rode down to the canal to see what had happened. He found that the dam had been taken out of the canal and the hole in the bank filled in. He followed the tracks of the culprit and apparently came upon Fernando at or near the property line. (At least the court documents refer to a survey, accomplished by R.H.Willis, later, or maybe even then, Chief Engineer of the Nebraska Water Department.) Fernando shot Fawcus in the back with both barrels of a double barreled shotgun loaded with buckshot, killing him instantly. He immediately rode to Sidney and turned himself in. He was tried for first degree murder. The judge instructed the jury that there was evidence tending to show that there had been trouble between the two men, and that the deceased had attempted to seduce the defendant's sister, but that neither of those facts, even if true, would be sufficient justification for homicide. He was defended by an obviously able lawyer, on grounds of self defense, and was acquitted.

Fawcus had some English friends in the area, including Henry Haig, and Henry Etches. There was a rumor that the English friends threatened to lynch Bozarth. In any event, he went back to Ottumwa, Iowa, and stayed there.

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Bozarth's Affidavit

Robert F Fawcus deceased had a dam built in his ditch in such a manner that he could shut off all of the water and turned it out to his land to the exclusion of those below him on the ditch of which [Bozarth] and the said Laura A Watsabaugh were two and that he did so to the great annoyance of herself as well as damage.

She had remonstrated with ... Fawcus as to his actions in the matter and requested him to permit the water to flow down the ditch in such quantity as she was entitled to that she might use it because her crops were suffering from want of it. Some times he would promise to do so and at other times would say if there was more water than he could use she could have it.

Her husband D. W. Watsabaugh was absent from home at Hemingford in Box Butte County, Nebr at work almost all of the summer of 1894. She was that summer cultivating and trying to raise a garden on the land of [Bozarth] about 1 1A miles east from the house of the said Robert F Fawcus under the said the Chimney Rock Irrigation canal and Water Power Company ditch. One day about the middle of August 1894 she was working in her said garden and had sat down to rest when suddenly Robert F Fawcus deceased rode over a little hill from the west to where she was sitting and as he got off his horse she rose up. Fawcus said "don't disturb yourself sit still I have come over to have a business talk with you in this quiet place where we will not be interfered with. Will you not be seated". She told him she preferred to stand and asked him what the business was he wished to talk over. Fawcus then said "I have come over to see if we can not come to some understanding about the matters we have been disputing." He then told her she had it in her power to fix the matter so they would have no more trouble over the matter. She told him she had never asked for more than of right belonged to her and she was entitled to; that he had taken every opportunity to shut the water off from her crops, that when he did not want it for his crops he cut the banks of the ditch and turned it into his lakes that she might not get it when her crops need it and that she did not know what she could do more than to demand her just rights. Fawcus said "Listen to my proposition and if you agree to it we can settle this business at once". He said he knew she had had an unpleasant time of it during the summer living by herself and having the care and bother of everything on her hands and that if she would submit herself to his pleasure and seal the contract by doing so right them she should never have any more trouble with him.

She then told him that she would tell her brother of his outrageous insult and that he would protect her and see that she had her rights. Fawcus became very angry and answered her by saying, "You have heard my proposition and it is all I will do. You tell your brother if you choose; but be sure and tell him at the same time that if he ever says anything to me about it or if he ever interferes with me in any way or attempts to meddle with the dam in my ditch or the water I will blow out what little brains the stupid brute has. I am only waiting for a chance to do it and always go fixed for it. You will regret this some day." She told Bozarth of what had happened and the insult offered by Fawcus and the threat he had made towards him. Fawcus continued to deprive [her] and her husband of the use of the water as had done before during the spring and early summer of 1895.

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IN THE DISTRICT COURT OF CHEYENNE COUNTY NEBRASKA

THE STATE OF NEBRASKA,
        Pltf
vs
Fernando W. Bozarth
              Defendant

The State of Nebraska}
                   } SS
Cheyenne County        }

Fernando W. Bozarth being first duly sworn deposes and says he is the defendant herein, that he cannot be ready for trial at the present term of this court for the want of the testimony of one Laura A. Watsabaugh, a material witness for defendant which he has been unable to procure; that the information in this case was filed in said court on the 23rd day of September 1895, that the defendant was committed to jail on the 27th day of May 1895, that the said Laura A. Watsabaugh was at that time a resident of Cheyenne County, Nebraska and present in said County. That she is a sister of affiant and that affiant was at the time the offense with which he is charged is alleged to have been committed working for her and her husband, and staying and boarding with them at their house which is about 3 3/4 miles from the house of the deceased Robert F. Faucus the person in the information filed herein alleged to have been killed and murdered by affiant. That he had been in the employ of and boarding at the said house of his said sister Laura A. Watsabaugh and her said husband continuously since about the middle of August 1894. That the said Laura A. Watsabaugh had called on affiant several times during his confinement in the jail at Sidney and has promised affiant that she would be present at the time of court and testify in the trial of this cause and that he need not have her subpoenaed and that affiant has implicitly relied upon her said promise. That on or about the 22nd day of August, 1895 she came in the village of Sidney, Nebraska to spend a few days and called on affiant at the jail during the time and then told affiant she would be present at this term of court to testify in his case. That she told affiant the last time she called on him that she was intending to leave Sidney and go to her said home on the second or third day of September 1895. That at that same time the said Laura A. Watsabaugh was so staying here in Sidney, W. W. Bozarth, the father of affiant and the said Laura A. Watsabaugh was over at the home of the said Laura A. Watsabaugh where he was intending to stay until the present time of court. That the home of the said W. W. is at Davis City State of Iowa. That on the first day of September 1895 as affiant is informed by his counsel Geo. P. Heist a telegram signed by affiant's sister "Clara" at Davis City Iowa addressed to affiant's Father W. W. in care of Geo. W. Heist at Sidney Nebraska saying "Come at once, Mother is dangerously sick" was received by him the said Geo. W. Heist That the said Geo. W. Heist is affiant's counsel in this case and that the said Laura A. Watsabaugh was staying at his house at the time and that he the said Geo. W. Heist showed said telegram to the said Laura A. Watsabaugh who left on the morning of the 2nd of September for Davis City State of Iowa saying she would be back before court time. That on the 22nd day of September 1895 affiant received through the mail a letter from his mother dated at Davis City State of Iowa September 19th 1895 informing affiant that she and the said Laura A. Watsabaugh had intended to start on that day for Sidney Nebraska but that Laura A. Watsabaugh was not able to start on that day owing to sickness of herself, was some better and would start on the next day. That on the 22nd day of September (Sunday) 1895 affiant was informed by his counsel Geo. W. Heist that he had that day received a certificate or affidavit from Doctor Edward W. Lee of the City of Omaha made in that city on the 21st day of September 1895 stating that he was on that day called so see and attend professionally Mrs. D. W. Watsabaugh who was on her way to Sidney Nebraska and found her very ill with an attack of Cholera Morbus and that she could not be moved without great danger and risk for a period of ten days or two weeks which said affidavit is hereto attached made a part hereof. That the said Mrs. D. W. Watsabaugh and Laura A. Watsabaugh are one and the same person, D. W. being the initial letters of her husband's name. That the said Laura A. Watsabaugh would testify if present that in and during the year of 1894 she lived about 2 3/4 miles east and north from the home of the said deceased Robert F. Faucus. That an irrigation canal known as the Chimney Rock Irrigation Canal and Water Power Company runs through the lands of the said Robert F. Faucus dec lands on to her land and also onto the land of affiant. That she and her husband have control of and were cultivating and using the land of affiant which adjoined their land. That she and affiant together were the owners of three shares or water rights in said ditch and she had the use and control of them to use upon the land of herself and affiant. That the said Robert F. Faucus had a dam built in his ditch in such a manner that he could shut off all of the water and turn it on to his land to the exclusion of those below him on the ditch of which affiant and the said Laura A. Watsabaugh were two and that he did so the great annoyance of herself as well as damage. That she had after remonstrating with him the said Faucus as to his action in the matter and requesting him to permit the water to flow down the ditch in such quantities as she was entitled to that she might use it because her crops were suffering for want of it. That some times he would promise to do so and at others would say if there was more water than he could use she could have it. That her husband D. W. Watsabaugh was absent from home at Hemingford in Box Butte County Nebr at work during the summer of 1894. That she was that summer cultivating and trying to raise a garden on the land of affiant about 1 1/2 miles east from the house of the said Robert F. Faucus and under the said The Chimney Rock Irrigation Canal and Water Power Company ditch. That one day about the middle of August, 1894 she was working in her said garden and had sat down to rest when suddenly the said Robert F. Faucus rode over a little hill from the west to where she was sitting and as he got off his horse she rose up. Faucus said don't disturb yourself, sit still, I have come over to have a business talk with you in this quiet place were we will not be seated. She told him she preferred to stand and asked him what the business was he wished to talk over. That Faucus then said I have come over to see if we can not come to some understanding about the matter we have been disputing over, especially the water question and he then told her she had it in her power to fix the matter so they would have no more trouble over the matter. That she told him she had never asked for more than of right belonged to her and she was entitled to, that he had taken every opportunity to shut the water off from her crops. That when he did not want it for his crops he cut the banks of the ditch and turned it into his lakes that she might not get it when her crops needed it and that she did not know what she could do more than to demand her just rights. Faucus said listen to my proposition and if you agree to it we can settle this business at once. Said he knew she had an unpleasant time of it during the summer living by herself and having the care and bother of everything on her hands and that if she would submit herself to his pleasure and seal the contract by doing so right then she should never have any more trouble with him. She then told him she would tell her brother the affiant (who had returned home from Iowa a few days before where she had been for some months) of his outrageous insult and that he would protect her and see that she had her rights.

That said Faucus became very angry and answered her by saying "You have heard my proposition and it is all I will do. You tell your brother if you choose; but be sure and tell him at the same time that if he ever says anything to me about it or if he ever interferes with me in any way or attempts to meddle with the dam on my ditch or the water I will blow out what little brains the stupid brute has. I am only waiting for a chance to do it and always go fixed for it. You will regret this some day."

That she told this affiant of what had happened and the insult offered her by Faucus and the threat he Faucus had made towards affiant. That the said Faucus continues to deprive the said Laura A. Watsabaugh and her husband of the use of the water as he had done before during the spring and early summer of 1895. That the said Laura A. Watsabaugh when affiant would be talking with her about the matter would often and at various times during the spring of 1895 call affiant s attention to the threats made by the said Faucus against affiant. That affiant knows of no other witness by whom he can prove these facts and that he can not safely proceed to trial without said testimony. That one of defendant's defenses to this action will be self defense.

That affiant expects to have said witness present to testify at the next term of this court. That this application for a continuance is not made for the purpose of delay but that substantial justice may be done.

/s/ Fernando W. Bozarth

Subscribed in my presence and sworn to before me this 24th day of Sept 1895.
/s/ C.J.Osborn
Clerk Dist. Court
By Wm J. Maneely, Deputy

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Possible sites of the shooting, sketch by Clark G Nichols
Google Earth map showing Fa(w)cus Springs, Nebraska
Excerpt from 'Pioneering in the Shadow of Chimney Rock', by Leon A. Moomaw

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Newspaper Clippings and Court Records
Charges placed by Cheyenne County Nebraska September Term 1895
'Murder Most Foul' - Sidney Telegraph June 1st 1895
'Plays The Crazy Act' - Sidney Telegraph June 6th 1895
'In The Circuit Court' - Sidney Telegraph Sept 28th 1895

Leon Reporter, Leon, Iowa
Thursday, February 4, l896

E.W. Curry departed yesterday for Sidney, Neb., where he will defend FRANK BOZARTH who is accused of murdering a young Englishman about a year ago. Mr. Curry will be assisted by Geo. W. Heist, of Sidney. Young BOZARTH was a former resident of this county, and his parents still reside near Davis City. He was always considered an exemplary young man, and it is hard to believe he would murder a man in cold blood as is charged. We gave a full account of the tragedy at the time it occurred.

'District Court Notes' - Sidney Telegraph Feb 15th 1896
Gering Weekly Courier masthead
'Fawcus' murderer on trial' - Gering Weekly Courier Feb 21st 1896
'Citizens Are Indignant' - Sidney Telegraph Feb 22nd 1896

Leon Reporter, Leon, Iowa
Thursday, February 27, l896

As announced in The Reporter last Thursday, the jury at Sidney, Neb. acquitted FERNANDO BOZARTH on the charge of murdering Robert W. Fawcus, a young Englishman in a quarrel over an irrigating ditch. The verdict was a bit of a surprise to not only the friends of MR. BOZARTH in this county, but the citizens of Sidney, for it was the opinion of nine out of every ten that he would be found guilty of murder in the first degree.

It was the greatest case ever tried in that part of Nebraska, as the friends of the murdered man employed the best legal talent in the State to assist in the prosecution, and were ably assisted by Judge Fawcus, of England, an uncle of the murdered man, who is recognized as one of the leading barristers of England, and came to America specially to assist in prosecuting this case. The defense was made almost wholly by Mr. E.W. Curry, of the firm of Curry & McGinnis, of this city, being assisted by only a local attorney at Sidney. The Sidney Poniard, in speaking of the trial says, "Harder work is seldom done in a court than did the defendant's attorneys all through the trial, and in cross examination few men could approach the skill shown by Judge Curry, who almost inevitably punctured the testimony at some vital point by his adroitly put questions."

The defense established the fact that for two years previous Fawcus had been systematically persecuting young BOZARTH, had repeatedly cut off his water supply from the irrigating ditch, and had on several occasions threatened to kill him. That BOZARTH had on more than one occasion left his home and the country on account of his fear of Fawcus, and that when he fired the fatal shots that he believed Fawcus was about to kill him, and that the killing of Fawcus was in self defense.

The jury took this view of the case, and after being out only a short time brought in a verdict of "not guilty." Only two ballots were taken, the first standing l0 to 2 in favor of acquittal. The friends of Fawcus had made their threats that in case of acquittal they would kill BOZARTH before he left town, but the sheriff took the precaution of having thirty armed deputies to escort MR. BOZARTH and his parents to the train that same afternoon. He is now visiting his parents at their farm near Davis City.

A big indignation meeting was held at Sidney on Friday, at which resolutions were passed censuring the jury and also the sheriff for not exercising care and impartiality in selecting the jury.

'Justifiable Homicide' - Gering Weekly Courier
'Bozarth Not Guilty' - Sidney Telegraph

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Fernando Bozarth (1868-1950) was married Oct 31 1897 in Davis City, Iowa to Nora Goble (1875-1947).
They had two sons, Clarence R. (July 28 1898-Feb. 11 1902) and Worlo L. (July 15 1902-Mar. 10 1908). All are buried in Hamilton Cemetery, Decatur County, Iowa.
A third child Francis was born Mar 16 1905.

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Contributors

Thanks to Clark G. Nichols for research, and providing copies of court records and newspaper clippings.