Vll Page of Page of Abstract Transcript Brockway, Amos': Direct exam. . 13G0 4GG9 Cross exam L3G4 4G80 Edward D., Deposition : Direct exam 4r)S HI 3 Cross exam 459 1120 (Read) 7G4 2192 Motion 4 957 3007 Ruling on motion 1227 425G Ruling on obj * 459 2192 Buffalo, Town plat of, Complainant’s Ex. A-2, Abstracted 1920 G529 Referred to 1278 4422 Burke vs. The Board, Case of 245 4i^G Burt, William S., Deposition : Direct exam 5G9 1554 Cross exam 574 1572 (Read) 1212 4202 Burton, Theo. E., Deposition : Direct exam 182 303 Cross exam 187 .3J4 (Read) G48 1827 C. “C”Ex. to Bill 3G 54 Cabinet Rapids, Witness Gray 1517 5093 Do 1520 5100 Do 154G 5170 Canal Com’rs, Leases Apl. 14, ’94, Nov. 27, ’94, June 25, ’92, by Board of (Snyder Ex. 20, 21, 22) 1388 4747 Proceedings, Extract from 250 500a4 Do 252 SOOall Do ^ 254 500al5 Do 254 SOOalG Do 254 500al7 Do 255 500al8 Do 25G 500a21 Do 257 500a23 Do 258 500a24 Do ? 258 500a25 Do 2G2 500a37 Do 2G3 500a39 Do 2G3 500a41 Report of, Jan. 31,/ 1825 (read) 10G7 3G00 Dec. 13, 1838 (read) 1097 3GG7 Do. 1872 1344 4598 December, 1894, p. 5 (read) 1577 5254 Do. 1895 1579 525G Vlll Canal Commissioners’ Rep. (continued) : December, 1896, re 90 ft. strip (read) December, 1898, re 90 ft. strip (read) 1900 (read) 1900 (re 90 ft. strip) pp. 17 and 48 (read) 1900 (re unsold Canal Lands) p. 41 etc. (read) Sanitary District Decree Canal, I. & M., re, Senate Journal, 1836-7 (read) Canal Improvements on 111. and Wabash Rivers, Chap. 19, Sec. 7 (read) Canal Lands, Advertisement of Sale, Authorized To sell Do Auction of. Authorized June 16, 1904 Lease of, approved by Com’rs, Proceedings of Board (Dep. J. M. Snyder) Approval of Governor Letter asking approval of Gov Notice of Sale Do Offer of Sale of, June 15, 1904 Re unsold (Canal Com’rs Report of 1900, p. 41 etc.) (read) Sale Recalled, Proceedings of Canal Com’rs (Dep. Jno.' M. Snyder) Snyder Deposition Witness Snyder Unsold list of Canal Survey, Mathewson, Tracing of, Orr Ex. 7, Abstracted... Referred to Canal Trustee’s, Report of 1850 (read) Do. 1871 Sub-plat, Deft’s Ex., Abstracted Referred to 2 Deft’s Ex., Abstracted Referred to 3 Deft’s Ex., Abstracted Referred to Celilo Falls, Witness Gray Certificate of Chas. S. Deneen, Deft’s Ex. 1, June 11 Evidence Note Explanatory To Chas. Boyer, dated Chicago, 1856 (Snyder Ex. 4) (read) Chamberlain, Oliver S., Deposition; • Direct exam (Read) Chambers Ency., art. “Joliet & La Salle” (read) Do Page of Page of Abstract Transcript 1581 5259 1580 5258 1090 3651 1165 3978 1166 3983 1680 6499 1168 3988 1346 4608 256 500a21 254 500al6 258 500a25 254 500al6 256 500a21 258 500a24 257 500a23 42 66 45 72 254 500al6 1166 3983 255 500al7 259 500a27 1292 4471 1334 4565 1920 6323 749 2128 1294 4481 1314 4521 1937 6707 1606 5303 1937 6718 1611 5318 1937 6712 1607 5304 1523 5106 1415 4825 631 1779 631 1780 1328 4552 606 1684 1222 4240 1649 5425 981 3157 IX Page of Page of Abstract Transcript Channahon Township, Will County, Outline Map of. Abstracted 1916 6490 Referred to 928 2887 Chanoine Wicket Dams, Description of. Witness Cooley 842 2510 Witness Cooley 849 2530 Charlevoix, Le-tters of. Witness Alvord 751 2135 (Read) 972 3122 Map, Andreas Chicago, Ex. 1, Abstracted 1916 6494 Referred to 702 1988 Chattahooche River (Dep. Sweeney) 322 597 Chicago American, of May 14, 1836 (read) 1365 4684 September 14, 1839 (read) 1366 4686 Chicago, Andreas, Ex. 1, Charlevoix’ Map, Abstracted 1916 6494 Referred to 702 1988 “Chicago Antiquities,” Hurlbut, (read from) 1655 5435 Chicago, Bd. of Pub. Wks. (see Bd. of Pub. Wks.). “Chicago,” Name applied to other Rivers, Witness Alvord 752 2140 Chicago, Rand-McNally Map of. Abstracted * 1926 6574 Referred to 929 2887 River route, Ex. Doc. 264 653 1842 Sanitary Dist. of Report, p. 12 (read) 1121 3777 Circuit Court, Stipulations in 629 1773 Clay, Charles, Deposition : Direct exam 472 1196 Cross exam 473 1198 Re-direct exam 474 1202 (Read) 680 1944 Clement, Arthur C., Deposition : Direct exam 391 821 Cross exam 394 836 Re-direct exam 399 850 Re-cross dxam 400 852 (Read) 850 2532 Rulings on obj 397 2597 Do 400 2599 Cobble Stone Bar, Witnes's Gray '. 1527 5119 Coen Patent, Drawing for 1727 Offered in Evidence 870 2599 Coen’s System of Propulsion (Witness Fox) 331 621 Collins, Franklin, Deposition: Direct exam 613 1708 Cross exam 615 1714 (Read) 1222 4240 Jeremiah, Direct exam 1051 3529 Cross exam 1053 3540 Columbia River, Burton Dep 184 310 Navigation of. Witness (^ray 1509 5069 X Page of Page of Abstract Transcript Commissioner, Canal, see Canal Commissioners. Complaint, Bill of 1 3 Complainant, Appearance of 79 91 Complainant’s Close 957 3007 Complainant’s Exhibits : ‘‘Al,” plat, Beardstown or Kankakee, Abstracted 1920 6527 Referred to 1278 4422 “A2,” plat, Buffalo, Abstracted 1920 6529 - Referred to 1278 4472 “A3,” School Sec. Addition Joliet, Abstracted 1920 6531 Referred to 1279 4422 “A4,” plat, Joliet, Abstracted 1920 6533 Referred to .• 1279 4422 “A5,” plat. West Joliet, Abstracted 1921 6535 Referred to 1279 4422 “A6,” plat, Vienna, Abstracted 1921 6537 Referred to 1279 4422 “A7,” plat, Lockport, 1837, Abstracted 1921 6539 Referred to 3279 4422 “A8,” plat, Lockport, 1836, Abstracted 1921 6541 Referred to 1279 4422 “A9,” plat. Summit, Abstracted 1921 6543 Referred to 1279 4422. “AlO,” plat. Archer xA.ddition to Desplaines, Abstracted 1921 6545 Referred to 1279 4422 “All,” plat, Keepotaw, Abstracted 1922 6547 Referred to 1279 4422 “A12,” plat, Emmetsburg, Abstracted 1922 6549 Referred to 1279 • 4422 (And See Exhibit, Complainant’s.) Comstock, Adam, Deposition : ^ Direct exam 586 1622 Cross exam 591 1639 Re-direct exam 591 1639 Re-cross exam 592 1640 Re-re-direct exam 593 1645 (Read) 1221 4240 Testimony : Direct exam 1277 4414 Cross exam 1280 4448 Board, Report of 652 1841 Do., referred to...... 811 2390 Report of 1700 5526 Conant, L. F., Deposition : Direct exam 495 1265 Cross exam 497 1268 (Read) 679 1942 (Read) 1291 4407 xi * Page of Page of Abstract Transcript Congress, Acts of (see Acts of Congress). Rep. of Com. re Canal (1825) 730 2072 Consent Decree, excluded ]679 5499 Consolidated Profile, Cooley Ex. 3, Abstracted 1923 6559 Referred to 812 2394 Referred to 813 2396 Continental Waterway Profile, Cooley Ex. 37, Abstracted 1934 6626 Referred to 1188 4123 Continuation of McCullough Ex. 1, McCullough Ex. 2, Abstracted 1915 6484 Referred to 777 2266 Referred to 841 2506 Cooley Ex. 1, Rep. Internal Imp. Com, 111., Abstracted 1725 5795 Referred to 804 2367 Referred to 921 2862 Ex. 2, Map and profile of Desplaines River, Abstracted 1923 6557 Referred to 811 2392 Referred to 813 2396 Ex. 3, Consolidated Profile, Abstracted 1923 6559 Referred to 812 2393 Referred to 813 2396 Ex. 4, Average Weekly Flow 1900, Abstracted 1729 5863 Referred to 810 2386 Referred to 876 2641 Ex. 5, Average Weekly Flow 1901, Abstracted 1729 5881 Referred .to _ 810 2387 Referred to 876 2641 Ex. 6, Average Weekly Flow 1902, Abstracted 1729 5899 Referred to 810 2386 Referred to 876 2642 Ex. 7, Average Weekly Flow 1903, Abstracted 1729 5918 Referred to 810 2386 Referred to 876 2642 Ex. 8, Average Weekly Flow 1904, Abstracted 1729 5937 Referred to 810 2386 Referred to 876 2642 Ex. 9, Average Weekly Flow 1905, Abstracted 1729 5954 Referred to 810 2386 Referred to 876 2642 Ex. 10, Average Weekly Flow 1906, Abstracted 1730 ^969 Referred to 810 2386 Referred to 876 2642 Ex. 11, Average Weekly Flow 1907, Abstracted 1730 5984 Referred to 810 2386 Referred to 876 2642 Ex. 12, Gauge Readings, 111. & Desplaines' Rivers, Abstracted 1725 5836 Referred to 809 2386 Referred to 876 2642 xii Page of Page of Cooley Exhibit (continued) : Abstract Transcript Ex. 13, Sanitary Dist, Rec., Nov. 27, 1907, Abstracted 1730 5999 Referred to 876 2642 Ex. 15, Seddon Profile, Abstracted 1927 6576 Referred to 876 2642 Ex. 16, Map of Watersheds, Abstracted 1927 6578 Referred to 920 2855 Ex. 21, Profile 1904, Abstracted 1930 6596 Referred to 1183 4100 Ex. 22, Sheet 55, Survey 1904, Abstracted 1930 6598 Referred to 1183 4100 Ex. 22a, Sheet 11, Survey 1904, Abstracted 1931 6604 Referred to 1183 4100 Ex. 23, Sheet 56, Survey 1904, Abstracted 1930 6600 Referred to 1183 4100 Ex. 23a, Sheet 12, Survey 1904, Abstracted 1931 6606 Referred to 1183 4100 Ex. 24, Sheet 57, Survey 1904, Abstracted 1931 6602 Referred to 1183 4100 Ex. 25, Sheet 13 of ^Marshall Rep., Abstracted 1931 6608 Referred to 1183 4100 Ex. 26, Marshall Profile, Abstracted 1932 6610 Referred to 1183 4100 Ex. 27, Sheet 16 of Marshall Profile, Abstracted 1932 6612 Referred to 1183 4100 Ex. 29, Profile 111 . River, Abstracted 1932 6614 Referred to 1184 4100 Ex. 30, Sanitary Dist. Profile, Abstracted 1932 6616 Referred to 1184 4100 Ex. 32, Riverside Gauge Readings, 1905, Abstracted 1730 6014 Referred to .* 1184 4100 Ex. 34, Riverside Gauge Readings, 1907, Abstracted 1730 6028 Referred to 1184 4100 Ex. 35, Wilson Profile, Referred to 1185 4101 Referred to 1933 6618 Ex. 36, Macomb Profile, Referred to 1185 4101 Referred to 1933 6620 Ex. 37, Continental Waterway Profile, Abstracted 1934 6626 Referred to 1188 4173 Lyman E. : Direct exam 794 2342 Direct exam 841 2506 Direct exam 876 2646 Cross exam 880 2662 Re-direct exam 916 2840 Re-cross exam 925 2873 Re-re-direct exam 927 2881 Re-re-cross exam 928 2883 Xlll Page of Page of Cooley, Lyman E. (continued) ; Abstract Transcript Recalled ' 1183 4100 Recalled 1204 4161 Recalled 1669 5462 Profile, Description of 812 2394 Copelantz, Cyrus' : Direct exam ' 1101 3678 Cross exam 1104 3693 Cordelling (Witness McKenzie) 171 273 Cornelius, James': Direct exam ' 1041 3485 Cross exam 1042 3495 Re-direct exam 1043 3499 Countryman, Joseph, Deposition: Direct exam 476 1212 Cross exam 479 3219 Re-direct exam 481 1225 (Read) 850 2532 Crawfish, Action of, (Sackett Dep.) 249 500 (Witness Mead) 1141 3844 (Witness Wheeler) 1254 4342 Cumberland River, Navigation on, (Witness Bewley) 1010 3352 (Witness McCullough) 1177 4044 D. Dablon, Narrative of, extract from 713 2027 Do 944 2960 Daly, Eugene, Deposition : Direct exam 471 1186 Cross exam 471 ‘llOl' (Read) 681 1945 Dam, Blue Print proposed embankment, part of. Abstracted 1929 6594 Referred to 1140 3841 Defendant’s, Description of (Witness Mead) 1132 3814 No. 1, Lease of 1676 5489 Sheet 1 of Plan of. Abstracted 1928 6582 Referred to 955 2997 Sheet 2 of Plan of, Abstracted 1928 6584 Referred to 955 2997 Site of. Plat of Survey, Rudolph Ex. 1, Abstracted... _ 1922 6551 Referred to 771 2244 House Doc. 263, pp. 45, 6, (Read) 842 2510 Dams in Des Plaines River (Alexander Dep.) ' 511 1324 (Clay Dep.) 473 1197 (Heydecker Dep.) 214 392 (King Dep.) 583 1611 (L. Stevens' Dep.) 550 1471 XIV Page of Page of Dams in Des Plaines’ River (continued) : Abstract Transcript (Witness Cooley) 927 2881 (Witness Cornelius) 1041 3485 (Witness Mills) 1030 3409 (Witness Mills) 1036 3445 (Witness Woermann) 1453 4909 Dana, Bounty Lands 715 2034 Decree, Consent, Excluded 1679 5499 Deed, Board of Trustees, I. & M. Canal, to Gideon Westbrook... 1610 5315 To Jas. Dines’ 1607 5306 Thos. Stimson 1608 5309 Win. Greene 1609 5312 Can. Com. to 111. Steel Co., Deft’s Ex. 2, June 12 (read)... 1417 4830 From Gov. Ford to Trustees of I. & M. Canal, Snyder Ex. 1, Introduced 1301 4496 Release, of Aug. 19, 1871 (read) 1326 4547 To Chas. Boyer (read) 1330 4555 Trust, Economy L. & P. Co. to Royal Trust Co., Abstracted 1854 630^ Referred to 1613 5323 Deep Waterway Com., Internat’l, Rep. of. Sheet 7, House Doc. 192, Abstracted 1933 6624 Referred to 1185 4101 -Sheet 8 of House Doc. 192, Abstracted 1933 6622 Referred to 1185 4101 Defendant, Appearance of 79 90 Admission as to title to Dam Site 1698 5520 Map, Land owned by, Woermann Ex. 1, June 15, Abstracted 1936 6644 Referred to 1498 5039 Defendant’s Blue Print Ex., Abstracted 1928 6580 Referred to 928 2886 Canal Trustee’s Sub-plat, Abstracted 1937 6707 Referred to 1606 5303 Sub-plat 2, Abstracted 1937 6718 Referred to 1611 5318 Sub-plat 3, Abstracted 1937 6712 Referred to 1607 5304 Ex. Tax Records, Abstracted 1935 6652 Referred to 1565 5228 Zarley Ex. 1, Sheet 13 of ^Marshall Survey, Abstracted 1924 ' 6567 Referred to 874 2625 Delineation, township line Town 34, Survey Ex. 4, Abstracted... 1775 5791 Referred to 766 2206 Deneen, Chas. S., Certificate of. Deft’s Ex., June 11 1415 4825 Deposition ; Abbott, Geo. (see Abbott). Adler, Jacob (see Adler). Alexander, George (see Alexander). Anderson, Mikarl (see Anderson). XV Page of Page of Deposition (continued) : Abstract Transcript Belz, Francis (see Belz). Blaes's, Jacob (see Blaess). Bowers, Urias (see Bowers). Boyne, James (see Boyne). Brockway, Edw. D. (see 'Brockway ). Burt, William S. (see Burt). Burton, Theodore E. (see Burton). Chamberlain, Oliver S. (see Chamberlain). Clay, Charles (see Clay). Clement, Arthur C. (see Clement). Collins, Franklin (see Collins). Comstock, Adam (see Comstock). Conan t, L. F. (see Conant). Countryman, Joseph (see Countryman). Daly, Eugene (see Daly). Dimmick, Charles (see Dimmick). Erhard, G. C. (see Erhard). Ferris, James H. (see Ferris'). Field, Enos (see Field). Flanders, Jas. R. (see Flanders). Found, Wm. (see Found). Fox, Geo. B. (see Fox). Gatons, Samuel (see Gatons). Gurney, George F. (see Gurney). Flammond, Seneca (see Hammond). Heydecker, C. F. (see Heydecker). Heyworth, Janies O. (see Heyworth). Hicks, Obadiah (see Hicks). Hillebrand, J. H. (see Hillebrand). Hoy, Charles (see Hoy). Johnson, Isaac M. (see Johnson). Jones Eliza (see JoneS, Eliza). Jones, S. W. (see Jones, S. W.). Keen, James C. (see Keen). Kercheval, Charles (see Kercheval). Killmer, R. W. (see Killmer). King, Daniel W. (see King). Kramer, Wm. (see Kramer). Layton, David (see Layton). Lorimer, Wm. (see Lorimer). McCowan, John (see McCowan). McDonald, Leon (see McDonald). McKenzie, Alex, (see McKenzie). Munch, Xavier (see Munch). Myer^, William S. (see Myers). O’Brien, Peter (see O’Brien). Orr, Robt. E. (see Orr). . XVI -r. . . . . Page of Page of Deposition (continued) ; Abstract Transcript Paddock, Frank (see Paddock). Palmer, Clarence H. (see Palmer). Parrent, Geo. W. (see Parrent). Pohl, Henry R. (see Pohl). Raymond, Geo. W. (see Raymond). Reed, G. W. (see Reed). Sackett, Wm. L. (see Sackett). Snyder, Jno. 'SI. (see Snyder). Spoor, Harlow H. (see Spoor). Stevens, Lewis K. (see Stevens, L. K.). Stevens, William W. (see Stevens, Wm. W.). Sweene}-, Jno. M. (see Sweeney). Tanner, Riley (see Tanner). 7'aylor, John W. (see Taylor). Wiggam, Wm. (see Wiggam). Wightman, George S. (see Wightman). Williams, Benezette (see Williams, B.). Williams, Stephen J. (see Williams, Stephen J.). Stipulation that witnesses need not sign HOI 819 (Washington) Stipulation for 1G5 259 Des Plaines, Bridges across, Woerniann Ex. 1, June 13 1449 4903 Plat of Archer Addition to. Complainant’s Ex. AlO, Ab- stracted 1921 6545 Referred to 1279 4422 River, Boats on (Clement Dep.) 392 822 (Erhard Dep.) 163 243 (Gaton’s Dep.) 484 1233 (King Dep.) 465 1155 (Parrent Dep.) 448 1068 (Pohl Dep,) 444 1046 (Reed Dep.) 157 222 ( S. Williams Dep.).- 527 1374 Condition in ’51 (Reed Dep.) 156 220 Dams in, (Alexander Dep.) 511 1324 (Clay Dep.) 473 1179 (Heydecker Dep.) 214 392 (King Dep.) 583 1611 (Stevens Dep.) 416 902 (L. Stevens Dep.) 550 1471 Eences in (Erhard Dep.) 163 243 Eords in (Countryman Dep.) 478 1217 (Reed Dep.) 156 220 Gates in fences (Erhard Dep.) 163 243 Map of Woermann, Ex. 4, Abstracted 1934 6634 Referred to 11^2 Navigability of (Witness Cooley) 805 2340 XVll Des Plaines River (continued) : With Profile, Map of, Cooley Ex. 2, Abstracted Referred to Referred to Dimmick, Charles, Deposition : Direct exam Cross exam (Read) Dines, Jas., Deed, Trustees, I. & M. Canal to Directory of Joliet (excluded) Preface, Drown’s (read) (Read) Document 1, pt. 2 (read) Vol II (read) House, 263, Dams (read) Report on Survey 264 (read) (Read) Executive, No. 16, Rep. of U. S. Eng (read) Drown’s Directory Preface (read) (Read) Peoria Drucker, Henry : Direct exam Resumed Druley v. Adam (see Adam ats. Druley). Dry Kiln Rapids (Witness Gray) Duane, J. E., Report of. Approving river route Duncan, J., Gov. of 111 ., Message Durham Boats, Description of. The Montello Drown’s “Peoria” (Shepherdson’s testimony) Reference to, in Drown’s Peoria E. “E” Exhibit to Bill Early Towns, Plats of. Complainant’s Ex’s A1-A12 “Early Voyages up and down Mississippi,” Shea (read) Extracts from Do. p. 254 (Read) “Early Western Travels,” Thwaites, Vol. 9 (read) Vol. 2, p. 625 (read) Economy L. & P. Co., Trust Deed, to Royal Trust Co., Abstracted Received . Elwood, Jas. G. : Direct exam Cross exam Re-direct exam Page of Page of Abstract Transcript 1923 6557 Hit 2392 813 2396 500 1278 503 • 1284 875 2635 1607 5306 955 3004 675 1928 678 1931 1115 3765 1118 3770 842 2510 660 1 862 949 2980 1121 3779 648 1828 675 1928 678 1931 959 3018 1058 3555 1060 3567 1521 5101 653 1842 1065 3595 934 2917 959 3018 679 1932 41 64 1278 4422 763 2183 973 3124 993 3219 1656 5442 942 2949 972 3118 1854 6302 1613 5323 1110 3743 1112 3752 1114 3760 xviii Emmetsburg, Town plat of, Complainant’s Ex. A-12, Abstracted Referred to Emory’s Bar (Witness Gray) Engineers, Board of, U. S., Report re Waterway, 1887 1900 Chief of, U. S., extract from Rep. 1867 1867 1872 1872, Part II 1875 (Identified) 1875, extracts from, p. 95 1875 1876 Part II 1878, p. 696 1880 1882 Do 1883, Part II, pp. 1340-45 1884 (Identified) 1884, Part III. . 1884, Part III 3 884 1886 Do 1887, Extracts from, p. 2122 Do. p. 2127 1890 (Identified) Do., extract from, p. 40 1891 1891 1895, pp. 2410-12 1895, Map 1900 1901 1901, Part V 1905, p. 2455, Corps of U. S., Rep. in House Doc. 263 Testimony of: Bremer, H. H Cooley, L. E Johnston, T. T Moore, Robert Mead, D. W Mead, D. W Rudolph, Emil Wheeler, L. L Williams, Edgar Woermann, J. W Page of Page of Abstract Transcript 1922 6549 1279 4422 1515 5086 653 1842 648 1828 1115 3265 1698 5522 1626 5355 1199 4152 169 270 651 1837 1199 4152 1631 5370 1624 5349 1192 4135 1617 5334 1619 5338 1710 5559 1189 4125 168 267 1550 5180 1118 3773 1699 5525 1615 5329 1703 5444 652 1839 653 1842 169 268 1275 4410 1197 4145 1212 4190 1630 5365 1951 6729 1124 3786 1126 3790 1583 5260 1203 4159 660 1862 779 2277 794 2342 1367 4689 994 3222 1129 3797 1281 4432 765 2194 1239 4286 834 2484 1428 4856 xix Page of Page of Abstract Transcript Erhard, G. C, Deposition : Direct exam 1G3 240 Cross exam 164 244 (Read) 647 1825 Ernst. Bd., Rep. of, House Doc. 26.1 Referred to 811 2391 Do., extract from 1127 3702 Do 1700 5527 Errors, Assignment of 1953 6731 Evidence, Certificate of 631 1779 Note Explanatory 631 1780 Stipulation, original, incorporated in Trans 630 1775 Ewing, W. L. D., Message 1065 3594 Executive Document 16, 40th Cong. (Wilson Rep.) (Identified).. 169 268 Extracts from, pp. 4, 5 648 1827 • Do., pp. 7, 8 ' 649 1831 Do., pp, 6, 8 ■ 1698 5522 Do., pp. 11, 23, 28 650 1834 Do., pp. 28, 29 1698 5523 Do. p. 438 1115 3765* Do., p. 440 1116 3767 Do. pp. 442, 444 1117 3769 264, Borings (p. 69) 6.54 1844 Giving Chicago River Route (pp. 12, 21) 653 1842 List of boats drawing 3 feet and less 656 1850 Extract from 1121 3779 Do 949 2980 Do 1267 4383 Exhibit “A” to Bill 28 43 McKenzie Dep 181 300 Allegheny River, Map of 1949 6729 Alvord (see Alvord Exhibit). Andreas, Chicago, Charlevoix’ Map, Abstracted 1916 6494 Referred to 702 1988 Referred to 641 1808 “B” to Bill 34 51 McKenzie Dep 181 300 Blue Print, Proposed Embankment, part of dam 1929 6594 Boundary Commission Rep 1723 5706 X” to Bill 36 54 Canal Com’rs Rep. 1900 1855 6337 Channahon Tp, Map 1916 6490 • Chicago, Map 1926 6574 Coen Patent 1725 5860 Coen Patent, Drawing 1727 Complainant’s A-1, Town Plat, Beardstown or Kankakee, Abstracted 1920 6527 Referred to 1279 4422 XX Page of Page of Exhibit, Complainant’s (continued) : Abstract Transcript “A-2,” Town Plat, Buffalo, Abstracted 1920 6529 Referred to 1279 4422 “A-3,” Map, School Sec. Add. to Juliet, Abstracted.... 1920 6531 Referred to 1279 4422 “A-4,” Town Plat, Juliet, Abstracted 1920 6533 Referred to 1279 4422 “A-5,” Town Plat, West Juliet, Abstracted 1921 6535 Referred to . 1279 4422 “A-6,” Town Plat, Vienna, Abstracted 1921 6537 Referred to 1279 4422 “A-7,” Town Plat, Lockport 1837, Abstracted 1921 6539 Referred to 1279 4422 “A-8,” Town Plat, Lockport 1836, Abstracted 1921 6541 Referred to 1279 4422 “A-9,” Town Plat, Summit, Abstracted 1921 6543 Referred to 1279 4422 “AlO,” Plat, Archer Addition to Desplaines, Abstracted 1921 6545 Referred to 1279 4422 “A-11,” Town Plat, Keepotaw, Abstracted 1922 6547 Referred to 1279 4422 “A-12,” Town Plat, Emmetsburg, Abstracted 1922 6549 Referred to 1279 4422 1, Kankakee Feeder Lease, Munroe ’ 930 2888 2, Pole Line Contract Dam No. 1, offered (excluded)... 931 2891 3, Gaylord Contract, Oct. 3, 1905, offered (excluded)... 931c 2895 4, Gaylord Contract, offered (excluded) 931d 2899 5, Letter appointing Inspector, introduced 931h 2907 Cooley 1, Rep., 111 . Internal Imp. Com., Abstracted 1725 5795 Referred to 804 2367 2, Map and profile, Desplaines R., Abstracted 1923 6557 Referred to 811 2392 Referred to 813 2396 3, Consolidated Profile, Abstracted 1923 6559 Referred to 812 2394 Referred to 813 2396 4, Average Weekly Flow, 1900, Abstracted 1729 5863 . Referred to 810 2387 Referred to 876 2641 5, Average Weekly Flow, 1901, Abstracted 1729 5881 Referred to 810 2387 Referred to 876 2641 6, Average Weekly Flow, 1902, Abstracted 1729 5899 Referred to 810 2387 Referred to 876 2642 7, Average Weekly Flow, 1903, Abstracted 1729 5918 Referred to 810 2387 Referred to 876 2642 Page of Page of Exhibit, Cooley (continued) : Abstract Transcript 8, Average Weekly Flow, 1004, Abstracted 1729 5037 Referred to 810 2387 Referred to 87G 2042 9, Average Weekly Flow, 1005, Abstracted 1720 5054 Referred to 810 2387 Referred to 870 2042 10, Average Weekly Flow, 1000, Abstracted 1730 5000 Referred to 810 2387 Referred to 870 2042 11, Average Weekly Flow, 1907, Abstracted 1730 5984 Referred to 810 2387 Referred to 870 2042 12, Gauge Readings of 111. & Desplaines Rivers, Ab- stracted 1725 5830 Referred to 809 2380 Referred to 870 2041 13, Sanitary Dist. Rec. Nov. 27, 1007, Abstracted 1730 5000 Referred to 870 2042 15, Seddon Profile, Abstracted 1927 0570 Referred to 870 2042 10, Map, Watersheds, Abstracted 1027 0578 Referred to 020 2855 21, Profile, 1004, Abstracted 1930 0.590 Referred to 1183 4100 22, Sheet 55, Survey of 1904, Abstracted 1930 0598 Referred to 1183 4100 22a, Sheet 11, Survey of 1904, Abstracted 1931 0004 Referred to 1183 4100 23, Sheet 50, Survey of 1904, Abstracted 1930 0000 Referred to 1183 4100 23a, Sheet 12, Survey of 1904, Abstracted 1931 0000 Referred to 1183 4100 24, Sheet 57, Survey of 1904, Abstracted 1931 0002 Referred to 1183 4100 25, Sheet 13, Marshall Rep., Abstracted 1931 0008 Referred to 1183 4100 20, Marshall Profile, Abstracted 1932 0010 Referred to 1183 4100 27, Sheet 10, Marshall Profile, Abstracted 1932 0012 Referred to 1183 4100 28, Sheet 2, Plan of Dam, Abstracted 1928 0584 Referred to 1183 4100 29, Profile, 111. River, Abstracted 1932 0014 Referred to 1184 4100 30, Sanitary Dist. Profile, Abstracted 1932 0010 Referred to 1184 4100 xxii Page of Page of Exhibit, Cooley (continued) : Abstract Transcript 31 (Same as Cooley Ex. 15). 32, Riverside Gauge Readings, 1905, Abstracted 1730 6014 Referred to 1184 4100 33 (Same as: Cooley Ex. 13). 34, Riverside Gauge Readings, 1907, Abstracted 1730 6028 Referred to 1184 4100 35, Wilson Profile, Referred to 1185 4101 Referred to 1933 6618 36, IMacomb Profile, Referred to 1185 4101 Referred to 1933 6620 37, Continental Waterway Profile, Abstracted 1934 6626 Referred to 1188 il23 “D” to Bill 40 62 Defendant’s 2, Judgment, McKee v. Canal Com’rs. 3, iVIcKee Deed to Canal Com’rs. Blue Print, Abstracted 1928 6580 Referred to 928 2886 Canal Trustees Sub-plat 1937 6707 Plat 2 1937 6718 Plat 3 1937 6712 1, June 12, 1908, Certificate, Chas. S. Deneen (read).... 1416 4826 2, June 12, 1908, Deed of Canal Com. to 111. Steel Co. (Read) 1417 4830 1, June 20, Trust Deed, E. L. & P. Co 1854 6300 Gov. Ford, First Letter from (read) 1566 5230 Second Letter from (read) 1576 5251 Tax Records 1936 6652 Druley v. Adams, Abstracts & Briefs 1733 6057 “E” to Bill , 41 64 “F” to Bill 42 65 Field Notes, 1, Abstracted 1724 5717 Referred to 766 2204 Referred to 875 2632 2, Abstracted 1724 5771 Referred to 766 2205 Referred to 875 2632 3, Abstracted 1725 5982 Referred to 766 2205 Referred to 875 2632 Fogarty “1,” Picture, Bridge across Lake Joliet, Abstracted.. 1730 6055 Referred to 1352 4647 Fox “1,” Photo., Interior of Tunnel Boat, Abstracted 1924 6563 Referred to 929 2887 2, Photo., Exterior of Tunnel Boat, Abstracted 1924 6565 Referred to 929 2887 Fox River, Map of 1945 6727 Fullerton, Patent to, introduced 1605 5299 Page of Page of Exhibit (continued) : Abstract Transcript “G” to Bill 43 G8 ‘‘H” to Bill 44 70 Heyworth, 1 , Copy of Subpoena (Heyworth Dep.) 372 74G llillebrand 1, Profile, Abstracted 192;‘> G5G9 Referred to 875 2G3G 2, Map, Joliet & vicinity. Abstracted ]92G G971 Referred to 875 2G3G 3, Blue print, Abstracted 3922 G555 Referred to 875 2G3G Referred to 928 2887 House Doc. 2G3, pp. 189-192, Abstracted 1730 GOll Referred to 1184 4100 Do., 478-520, Abstracted 1730 GOll Referred to 1184 4100 “I” to Bill 44 71 “J’’ 4G 74 June IG, 1, Oregon Map 193G GG48 Referred to 1550 5180 2, Washington Map 193G oG50 Referred to 1550 5 ise “K” to Bill 47 7G “L” to Bill 50 80 Long’s Report & Map 1917 G49G Referred to 712 2024 “M” to Bill 51 82 MeCullough “1,” Map U. S. Gov’t Survey, Tp’s on Desplaines, Abstracted 1914 G480 Referred to G33 1785 Referred to 841 250G ‘TA,” Referred to 7G9 2224 Referred to 833 2470 Referred to 841 2505 Additions to McCullough Ex. 1, Abstracted 1914 G482 “2,” Continuation, McCullough Ex. 1, Abstracted 1915 6484 Referred to 777 2269 Referred to 841 2506 “2A,” Additions to McCullough Ex. 2, Abstacted 1915 6486 Referred to 777 2271 Referred to 841 2505 Marquette’s Map 1941 6725 Margry, June 16 1640 5392 * Orr “1,” Map of 111. & Mich. Canal Lands, Abstracted 1917 6511 Referred to 929 2887 “2,” Index page of plat Book No. 2, Abstracted 1918 6513 Referred to 929 2887 “3,” Blue print of Mathewson Survey, Abstracted 1918 6515 Referred to 929 2887 xxiv Page of Page of Exhibit, Orr (continued) : Abstract Transcript ‘*4,” Extension of Orr Ex. 3, Abstracted 1919 6517 Referred to 929 2887 “5,” Page of Plat Book No. 1, Abstracted 1919 6517 Referred to 929 2887 “6,” Survey of Secs. 3, 4 & 5, Town 38, Abstracted 1919 6521 Referred to 929 2887 “7,” Tracing of ]\Iathewson Canal Survey, Abstracted... 1920 6523 Referred to 749 2127 Patent Tunnel Boat, Abstracted 1725 5860 Referred to 870 2599 Profile Sheet 7, House Doc. 192 1933 6622 Sheet 8 1933 6624 Rock Island Rapid.s, Map of 1837 1937 6721 Do. 1880 1938 6723 Rudolph 1, plat, survey, .site of dam. Abstracted 1922 6551 Referred to 771 2244 Schoolcraft iMap ' 1929 6592 Sheet 1, Plan of Dam, Abstracted 1928 6582 Referred to 955 2998 Sheet 2, Plan of Dam, Abstracted 1928 6584 Referred to 955 2998 Snyder 1, Deed from Gov. Ford to Trustees of I. & M. Canal introduced 1301 4496 2, Report Canal Trustees 1871 1314 4522 3, Release Deed, Canal Trustees 1326 4547 4, Boyer’s Certificate of Purchase 1328 4552 5, Boyer Deed 1330 4555 6, Proceedings Canal Trustees, May 14, 1861 1331 4560 7, Proceedings Canal Trustees, May 14, 1861 1332 4560 8, List unsold Canal Lands 1334 4565 9, Kimberly Patent 1338 4578 10, Kimberly patent 1339 4584 11, Voucher, Piepenbrink 1340 4588 ]2, Voucher, Parks 1342 4591 13, Resolution, Canal Trustees, re Adam judgment 1343 4594 14, p. 17 Rep. Canal Com’rs 1872 1344 4597 15, Beard Deed, Kankakee Feeder 1347 4619 16, Kelley Deed, Kankakee Feeder 1348 4627 17, Beard Deed, Kankakee Feeder 1348 4627 18, Hays Deed, Kankakee Feeder 1349 4631 19, Hays Deed, Kankakee Feeder 1349 4635 20, 111. Steel Co. lease 1388 4747 21, Lease by Canal Com. to Norton 1391 4752 22, Lease by Canal Com. to Kavanaugh 1393 4758 A, Gov’t Survey, Abstracted 1934 6632 Referred to 1292 4471 Stevens, 4, Woodruff’s Lectures 404 808 XXV Page of Page of Exhibit (continued) : Abstract Transcript Survey, 4, delineation, township line. Town 34, Abstracted. . 1725 5791 Referred to 7GG 220G Tax Records, Defendant’s, Abstracted 1936 6G52 Referred to 1565 5228 Thevinot’s Map, Alvord 1 1917 6509 Township 39, Plat of 1922 6553 Wheeler 1, Cross-sec., Hennepin Canal, Abstracted 1934 6628 Referred to 1241 4294 Will County Map 1916 6488 Woermann 1 (Cross-sec. above Adam’s Dam) Abstracted... 1928 6586 Referred to 997 3241 2, Wilson Profile, Abstracted 1929 6588 Referred to 998 3246 3, Sheet 6, 111. & Desplaines R. Surve}^ Abstracted 1929 6590 Referred to 1007 3287 4, Map of Desplaines R., Abstracted 1934 6634 Referred to 1452 4906 June 8, Cross-sec. above Adam’s Dam, Abstracted 1934 6630 Referred t5 1247 4319 1, June 13, List of Bridges 1449 4903 A, June 13, Alap of Kankakee River Valley, Abstracted. . 1935 6536 Refererd to 1458 4930 B, June 13, 1908, Map of Til. River and of I. & M. Canal 1471 4967 C, June 13, 1908, Wilson Survey Map, Abstracted 1935 6638 Referred to 1471 4967 D, June 13, Woermann Profile, Abstracted 1935 6642 Referred to 1472 4971 Portion of Wilson Profile, Abstracted 1935 6640 Referred to 1471 4968 1, June 15, IMap, Land owned by Deft., Abstracted 1936 6644 Referred to 1498 5039 2, June 15, Continuation of Woermann Ex. 1, June 15, Abstracted 1936 6646 Referred to 1498 5039 Zarley Defendant’s, 1, Sheet 13, Marshall Survey, Abstracted 1924 6567 Referred to 874 2625 Explanatory Note of Certificate of Evidence 631 1780 Extension of Orr Ex. 3, Orr Ex. 4, Abstracted 1919 6517 Referred to 929 2887 F. “F” Exhibit to Bill 42 65 Feeder (see Kankakee Feeder). Fences in Desplaines R. (Erhard Dep.) 163 243 Ferris, James H., Deposition: Direct exam 499 1274 Cross exam 499 1276 Re-direct exam 500 1277 xxvi Page of Page of Abstract Transcript Field, Enos, Deposition : Direct exam 598 1660 Cross exam 601 1668 (Read) 1221 4240 Field Notes, “Ex. 1,” Abstracted 1724 5717 Referred to 765 2194 “Ex. 2,” Abstracted 1724 5771 Referred to 766 2205 “Ex. 3,” Abstracted 1725 5982 Referred to 766 2205 Ex. 1, 2 &: 3 received in evidence 875 2632 Fish-hook Rapids, Witness Gray 1526 5116 Do 1545 5168 Five-mile Rapids, Witness Gray 1526 5115 Flanders, James R., Deposition: Direct exam 429 -973 Cross exam 430 981 Re-direct exam 432 990 (Read) 850- 2532 Flint’s Letters, extract from -729 2069 Do 942 2949 Fogarty, Patrick : Direct exam 1350 4639 Cross exam 1356 4658 Re-direct exam 1359 4666 Re-cross exam 1369 4667 Fogarty Ex. t. Picture Bridge across Lake Joliet 1730 6055 Referred to 1352 4647 Ford, Gov., Deed from, to Canal Trustees, Snyder Ex. 1 1301 4496 First letter (read) 1566 5230 Second letter (read) 1566 5251 Fords in Desplaines R. (Countryman Dep.) 478 1217 (Reed Dep.) 156 220 Found, William, Deposition of : Direct exam 461 1129 (Read) 1238 4286 Fox, Geo. B., Deposition : Direct exam ' 329 618 Cross exam 334 631 (Read) 870 2599 Ex. 1, Photo., interior of tunnel boat. Abstracted 1924 6563 Referred to 929 2887 Ex. 2, Photo., exterior of tunnel boat. Abstracted 1924 6565 Referred to 929 2887 River, Dams in (Witness ]\Iead) 1135 3824 Long’s Rep 1624 5350 Map and Profile 1947 XXVll r o- . . Page of Page of Fox River (continued) : Abstract Transcript Abstracted I 945 6727 Referred to 1626 5353 “The Montello” 933 2915 Fraser River (Witness Gray) 1514 5933 Fullerton, Alex N., Exhibit, Patent, introduced 1605 5299 G. “G”Ex. to Bill 43 68 Gasconade River, Navigation of (Witness Cooley) 798 2355 Gates in Fences, Desplaines R. (Erhard Dep.) 163 243 Gatons, Samuel, Deposition : Direct exam 433 1230 Cross exam 435 ]236 Re-direct exam 437 1242 Re-cross exam 437 1242 Re-re-direct exam 437 1242 (Read) 680 1944 Gauge Readings (Witness Cooley) 806 2374 (Witness Johnston) 1374 4709 * (Witness Woermann) 1432 4366 Cooley Ex, 12 , Abstracted 1725 5335 Referred to 809 2386 Referred to 876 2642 Ex. 32, Abstracted 1730 6014 Referred to 1184 4100 Ex. 34, Abstracted 1730 6028 Referred to 1184 4100 Gaylord Contract, Complainant’s Ex. 3 931c 2896 Ex. 4 931d 2900 General Replication I 53 157 Government Repts. (see Engineers, Executive Doc., House Doc., etc.). Government Survey, Snyder Ex. A, Abstracted I 934 6632 Referred to 1292 4472 Graham, R., and Philips, J., Rep. of 700 2018 Grand Rapids, Stikine River, Witness Gray 1534 5134 Gray, Wm. P. : Direct exam 1506 5063 Cross exam 1514 5083 Re-direct exam 1544 5164 Re-cross exam 1548 5175 Re-direct exam 1549 5179 Gray’s Defeat, Witness Gray 1526 5115 Green River, Navigation on 1017 3338 Green, Wm., Deed, Canal Trustees to (read) 1609 5312 Greenville, Treaty of 760 2175 xxvin Page of Page of Abstract Transcript Griswold, Harold T. : Direct exam 850 2533 Cross exam 853 2541 Re-direct exam 853 2542 Lease, approved 263 500a41 Gurney, George F., Deposition of : Direct exam 532 1391 Cross exam 535 1402 Re-direct exam 537 1415 Re-cross exam 538 1419 Re-re-direct exam 538 1420 (Read) 1176 4032 H. “H” Exhibit to Bill 44 70 Hammond, Seneca, Deposition of : Direct exam 607 1688 Cross exam 609 1695 (Read) 1222 4240 Handbury, Major, Rep. of, on waterway. Miss. Riv. & Lakes (read) 652 1839 Harmon, Jacob A., Rep. of (read) 1061 3578 Hart, A. B., x\m. Nation, extract from 747 2122 Hennepin, Louis, “New Discovery,” extract from 972 3118 Hennepin Canal, Cross-sec. of, Wheeler Ex. 1, Abstracted 1934 6628 Referred to 1241 4294 Navigation on. Witness Wheeler . 1240 4290 Do 1271 4397 Heward, Hugh, Journal, extracts from 745 2115 Rulings on motion to strike out 1238 4281 Heydecker, C. T., Deposition ; Direct exam 204 364 Cross exam 214 392 Re-direct exam 216 398 Re-cross exam 217 399 (Read) 764 2187 Motion . . . .- 957 3007 Ruling on motion 1232 4266 Heyworth, James O., Deposition; Direct exam 371 745 Cross exam 376 764 Re-direct exam 379 771 Re-cross exam 380 774 Re-re-direct exam 380 775 (Read) 781 2284 Alleged errors in 1603 5295 Testimony, Direct exam 1603 5295 xxix Page of Page of Abstract Transcript Hicks, Obadiah, Deposition of: Direct exam 435 1004 Cross exam. 436 1006 Re-direct exam 439 1013 (Read) 680 1942 Motion 957 3006 Ruling on motion 1226 4250 Ruling on obj 436 1942 Hild, Frederick H. : Direct exam 640 1806 Cross exam 642 18 JO Re-direct exam 646 1823 Re-cross exam 646 1823 Hillebrand, J. H., Deposition : Direct exam 292 520 Cross exam 302 545 Direct exam, cont’d 304 550 Cross exam, cont’d . 311 506 (Read) 875 2635 Exhibit 1, Profile, Abstracted 1925 6569 Referred to 875 2636 2, Map, Joliet & vicinity. Abstracted 1920 6971 2, Blue print. Abstracted 1922 0555 Referred to 875 2630 Referred to 928 2887 Hill’s Bar, Witness Gray 1515 5087 Historical Evidence, Witness Alvord 681 1947 Witness Shepardson 957 3009 History, Woodruff’s, Will County 955 3004 House Doc. 192, Profile Sheet 7, Abstracted 1933 6022 Referred to 1185 4101 Profile Sheet 8, Abstracted 1933 0624 Referred to 1185 4101 263 (Identified) 169 269 263, extracts from, pp. 8, 9 1700 5527 Do. p. 16 660 1862 Do 1702 5582 Do., pp. 7, 8 1127 3791 Do., p. 212 1128 3792 263, “Dams,” pp. 45, 46 842 2510 Referred to 1730 6011 264 (Read) 949 2980 Do., p. 7 950 2982 Do 1121 3779 XXX Page of Page of Abstract Transcript Hoy, Charles, Deposition: Direct exam 467 1166 Cross exam 467 1169 Re-direct exam 469 1176 Re-cross exam 469 1176 (Read) 679 1943 Hurlbnt’s “Chicago Antiquities” (Read) 1655 5436 Hutchins, T., Letter 727 2064 “Hydrostatic Head,” Definition of. Witness Wheeler 1245 4312 Hypothetical Question, Witness Bewley 1016 3335 Witness Pryor 1024 3375 I “I” Exhibit to Bill 44 71 Illinois & Desplaines R., Gauge Readings of, Cooley Ex. 12 Abstracted 1725 5386 Referred to 809 2385 Referred to 876 2642 Survey Sheet 6, Woermann Ex. 3, Abstracted 1929 6590 Referred to 1007 3287 & Michigan Canal, Deed, Trustees to, Jas Dinet (read).... 1607 5306 Wm. Greene (read) 1609 5312 Thomas Stinson (read) 1608 5309 Gideon Westbrook (read) 1610 5315 Deed from Gov. Ford to Trustees of, Snyder Ex. 1 ... 1301 4496 Lands, Map of, Orr Ex. 1, Abstracted 1917 6511 Referred to 929 2887 re. Senate Journal 1836-7 (read) 1168 3988 Report of Trustees, 1871 (read) 1314 4522 Report, 1900, Abstracted 1855 6337 Referred to 1292 4472 & Wabash Rivers, Canal Improvements of. Chap. 19, Sec. 7 (read) 1346 4608 Historical & Statistical, Moses, pp. 76-7 (read) 1057 3553 “Illinois in 1837” 960 3030 Extract from 208 379 Do 722 2051 Do., Ruling on motion to strike out 960 3030 Illinois Legis., Acts of (see Acts of 111. Legis.). Illinois River & Canal, Map, Woermann “Ex. B,” June 13, 1908 Abstracted 1935 6638 Referred to l 1471 4967 Profile, Cooley Ex. 29, Abstracted 1932 6614 Referred to 1184 4100 Steel Co., Deed of Canal Commissioners' to, Defdt. “Ex. 2,” June 12, 1908 (read) 1417 4830 (The Upper) (read) 921 2862 XXXI Imlay’s America, p. 485 (read) Do., pp. 71, 503 Index page, plat book No. 2, Orr Ex. 2, Abstracted Referred to Information or Bill of Complaint Abstract of Prayer of Verification of Injunction, Notice of Application for Preliminary, order for Return, Writ of Writ of Internal Improvement Com. of 111., Rep. of, Cooley Ex. 1 Abstracted Referred to Extract from International Deep Waterway Com., Profile Sheet 7, House Doc. 192, Abstracted Referred to Profile Sheet 8, House Doc. 192, Abstracted Referred to J. “J” Exhibit to Bill Jesuit Relations, Vol. 58 Do., Vol 59 Johnson, Isaac M., Deposition: Direct exam Cross exam Johnston, Thos. T. : / Direct exam Recalled Cross exam Re-direct exam Joint Resolution, 111. Legis'., 1907 Do. (see Acts of 111. Legis.). Joliet & Vicinity, Map of, Hillebrand Ex. 2, Abstracted Referred to : “Joliet,” Article on. Chambers Ency. (read) Joliet, Directory of, extract from Ruling on obj Lake, Bridge across, Picture, Fogarty Ex. 1, Abstracted.... Referred to “Joliet Signal,” extract from Do Page of Page of Abstract Transcript 937 2935 727 2064 1918 6513 929 2887 1 2 52 26 40 28 42 78 83 70 42 78 89 78 87 1725 5795 804 2367 921 2862 1933 6624 1185 4101 1933 6622 H85 4101 46 74 712 2026 713 2031 422 935 423 940 1367 4689 1396 4765 1404 4790 1412 4818 932 1908 1926 6971 875 2636 1649 5425 405 871 955 3004 1730 6055 1352 4645 403 864 444 1045 XXXll Page of Page of Abstract Transcript Joliet’s Map, 1674, Alvord Ex. 1, Abstracted 1916 6492 Referred to 688 1963 Jones, Eliza P., Deposition : Direct exam 461 1132 Cross exam 462 1136 • (Read) 662 1867 Motion 956 3006 Ruling on motion 1229 4259 Samuel W., Deposition : Direct exam 463 1141 Cross exam 464 1144 (Read) 662 1867 Motion 956 3006 Ruling on motion 1230 4261 Journal (Senate), 1836, p. 17, etc. (read) 1065 3594 1836-7 (re I. & M. Canal) (read) 1168 3988 1838-9, p. 12 (read) 1066 3597 Joutel, Quotation from, Parkman’s “La Salle” 1043 3502 Juliet, Map, School Sec. Add., Complainant’s Ex. A-3, Abstracted 1920 6531 Referred to 1279 4422 Town Plat, Complainant’s Ex. A-5, Abstracted 1278 4422 Referred to 1278 4422 K. “K” Exhibit to Bill 47 76 Kanawha River, Navigation on. Witness Bing 664 1873 Kankakee, Early Town plat of, Abstracted 1920 6527 Referred to 1280 4424 Feeder (Anderson Dep.) 424 947 (Dimmick Dep.) 500 1278 (Johnson Dep.) 422 936 (McDonald Dep.) 287 502 (Sackett Dep.) 235 454 (B. Williams, Dep.) 340 646 Witness Mead 1144 3854 Witness Wheeler 1248 4321 Proposed lease in connection with (Snyder Dep.) 263 500a39 R. Valley, Map, Woermann Ex. A, June 13, Abstracted.... 1935 6636 Referred to 1459 4930 Kaskaskia, Name transferred 735 2085 Witness Alvord 687 1960 Kavanagh, M. and Russell S., Lease, Canal Commissioners to Snyder Ex. 22 (read) 1393 4758 Keel, Boats, Drown’s Peoria 679 1932 Do 959 3018 XXXlll Page of Page of Abstract Transcript Keen, James C., Deposition of: Direct exam. 593 1G4G Cross exam. 596 1G55 Re-direct exam 597 1658 (Read) 1221 4240 Keepotavv, Town plat of, Complainant’s Ex. A 11, Abstratced. . . . 1922 6547 Referred to 1279 4472 Kentucky River, Navigation on, Witness Pryor 1025 3381 Keoiigh, Wm., Appointment as Inspector, Complainant’s Ex. 5.. 931h 2907 Kercheval, Charles, Deposition : Direct exam 475 1205 Cross exam 476 1208 Kilmer, R. W., Deposition : Direct exam 625 1752 Cross exam 627 1755 Re-direct exam 628 1759 (Read) 1222 4240 Kimberly, F. S., Patent'to, dated 1839, Snyder Ex. 10 (read)... 1339 458^ King, Daniel, Deposition : Direct exam 464 1149 Cross exam 466 1157 (Read) 681 1945 Motion 957 3007 Ruling on motion John P., Deposition: Direct exam 581 1602 Cross exam 584 1616 Re-direct exam 585 1619 Re-cross exam 585 1620 Kramer, Wm., Deposition : Direct exam 354 688 Cross exam 359 704 Re-direct exam 368 733 (Read) 876 2636 L. ‘‘L” Exhibit to Bill 50 8ft Lakes to Gulf Waterway, Report of Sanitary Disk, pp. 3, 4, 8, 9 (read) 1186 4116 Extract from 899 2747 Do 915 2836 Lands, Canal (see Canal Lands). Owned by Defendant, Map of, Woermann Ex. 1, June 15 Abstracted 1936 6644 Referred to 1498 5039 xxxiv Page of Page of Lands, Canal (continued) : Abstract Transcript Sale, Advertisement of 258 500a25 Postponed Proceedings of Canal Com’rs, Aug. 4, 1904, Snyder Dep 252 500all La Salle, Chambers Ency., received in evidence 1647 5421 Letters of, 1680, received in evidence 1640 5392 Parkman’s, extracts from, pp. 51-66 733 2080 Do., p. 449 738 2094 Parkman’s, offered 1647 5421 Layton, David, Deposition : Direct exam 575 1577 Cross exam 580 1595 (Read) 1217 4202 Lease, Canal Com. to 111. Steel Co., Snyder Ex. 20 (read) 1388 4747 M. Kavanaugh & S. Russell, Nov. 27, 1894, Snyder Ex. 22 1393 4758 Herbert S. Norton, April 14, 1894, Snyder Ex. 21 1391 4752 of Canal Land (Synder Dep.) 255 500al8 Approved (Snyder Dep.) 256 500a21 of Dam No. 1 (read) 1676 5489 Proposed additional lease in connection with Kankakee Feeder (Snyder Dep.) 263 500a39 Proposition .submitted for additional lease of water power (Snyder Dep.) 262 500a37 to Griswold, approved 263 500a41 Lee, Robt. E., Map of, rec’d in evidence 1617 5333 Rep. of, rec’d in evidence 1615 5329 Letter from Col. Bixby, of Mar. 16, 1906 (read) 1210 4181 of Asst. Sec’y of War, in Answer 108 131 Father Dablon, Aug. 1, 1674 (read) 944 2960 Linden, Jno. A. : Direct exam 1606 5301 (Cont’d.) 1712 5563 Little Pine Tree Rapids, Snake River, Witness Gray 1513 5080 Lockport, 111., Proceedings of Canal Com’rs at, Aug. 4, 1904 (Snyder Dep.) 252 SOOall Town plat of, 1836, Complainant’s Ex. A8, Abstracted 1921 6541 Referred to 1279 4472 1837, Complainant’s Ex. A7, Abstracted 1921 6539, Referred to 1279 4422 Long Crossing Rapids, Witness Gray 1527 5118 Do 1545 5168 Maj., Rep. of, 1817-1819 (read) 1624 5350 Long’s Rep. and Map, Exhibit of. Abstracted 1917 6496 Extract from 705 2001 Do 739 2097 Referred to 712 2024 XXXV Page of Page of Abstract Transcript Lorimer, Wm., Deposition ; Direct exam 195 334 Cross exam 106 338 (Read) 648 1827 M. “M” Exhibit to Bill 51 82 Mack, Judge, Order appointing 153 159 Mackinac, Witness Alvord 729 2068 Mackinaw Boats (Belz Dep.) 440 1016 Macomb, J. N., Report of, on Transportation Route (read) 651 1837 Profile, Cooley Ex. 36, Referred to 1185 4101 Referred to 1933 6620 Do 811 2390 McCaflfrey, John ; Direct exam. . 1157 3932 Cross exam 1159 3942 McCowan, John, Deposition : Direct exam 617 1723 Cross exam 620 1736 Re-direct exam 623 1744 Re-cross exam 624 1747 (Read) 1222 4240 (Recalled) Direct exam 491 1253 Cross exam 494 1260 (Read) 1238 4286 McCullough, Jos. E. : Direct exam 1176 4034 Cross exam 1177 4044 Re-direct exam 1179 4061 Re-cross exam 1179 4069 Recalled 1182 4095 Cross exam 1182 4098 Re-direct exam 1183 4099 “Ex. 1,” Map of Township in Ranges 8, 9 & 10, Abstracted. . . 1914 6480 Referred to 633 1785 Referred to 841 2505 “Ex. 1-A,” Additions to McCullough Ex. 1, Abstracted 1914 6482 Referred to 769 2224 Referred to 841 2505 “Ex. 2,” Continuation of McCullough Ex. 1, Abstracted 1915 6484 Referred to 777 2269 Referred to 841 2505 “Ex. 2-A,” Additions to McCullough Ex. 2, Abstracted 1915 6486 Referred to 777 2271 Referred to 841 2505 xxxvi Page of Page of Abstract Transcript McDonald, Leon, Deposition : Direct exam 265 500a45 Cross exam 279 500a85 Re-direct exam 289 509 Re-cross exam 291 515 (Read) 875 2635 McKenzie, Alex., Deposition : Direct exam 166 261 Cross exam 170 270 Re-direct exam 175 288 Re-cross exam 177 293 Re-re-direct exam 180 297 Re-re-cross exam 180 299 Ex. “A” to 181 302 Ex. “B” to 181 300-1 (Read) 648 1827 McLaughlin’s Falls' (Witness Gray) 1518 5094 Magazine of American History, Vol. 2, p. 552 (read) 968 3109 Vol. 2 (read) 1646 5420 Alap & Profile of Allegheny River 1951 Abstracted 1949 6729 Referred to 1630 5365 Chief of Eng. Rep., 1880, Rec’d in evidence 1619 5337 of Channahon Township, Will County, Outline, Abstracted 1916 6490 Referred to 928 2887 Chicago, Rand-McNally, Abstracted 1926 6574 Referred to 929 2887 Desplaines River with Profile, Cooley Ex. 2, Abstracted.... 1923 6557 Referred to 811 2392 Referred to 813 2396 Fox River 1947 Abstracted 1945 6727 Referred to 1626 5353 111. & Mich. Canal Lands, Orr. Ex. 1, Abstracted 1917 6511 Referred to 929 2887 1674, Joliet’s, Alvord Ex. 1, Abstracted 1916 6492 Referred to 688 1963 Land owned by Deft., Woermann Ex. 1, June 15, Abstracted 1936 6644 Referred to 1498 5039 Lee, Robt. E., Rec’d in evidence 1617 5332 Oregon, Ex. 1, June 16, Abstracted 1936 6648 Referred to 1550 5180 Rock Island Rapids 1939 6723 Abstracted . 1937 6721 Referred to 1615 5328 No. 2, Abstracted 1938 6723 Referred to 1619 5337 xxxvii Page of Page of Map (continued) : Abstract Transcript School Sec. Addition to Juliet, Complainant’s Ex, A3 Abstracted 1920 6531 Referred to 1279 4422 Township in Ranges 8, 9 & 10, IMcCullough Ex. 1, Abstracted 1914 6480 Referred to 633 1785 Referred to 841 2505 Wash.. Ex. 2, June 16, Abstracted 1936 6650 Referred to 1550 5180 Watersheds, Cooley Ex. 16, Abstracted 1927 6578 Referred to 920 2856 Will County, Outline, Abstracted 1916 6488 Referred to 92S 2887 Maps, Early, Andreas’ Map, offered 701 1986 Margry Ex., June 16, La Salle’s Letter of 1680 (read) 1640 _ 5392 Do., extract from, p. 81 963 3070 Do., p. 32 1060 3567 Vol. 2, pp. 81, 82 (read) 971 3116 Marquette’s Map 1943 Abstracted 1941 6725 Referred to 1624 5349 Marquette, First Voyage (Witness Alvord) 683 1953 Marseilles Rapids 1125 3787 Marshall, W. L., Rep. of 811 2391 Do. (see Executive Doc. 264). Marshall, Profile, Cooley Ex. 26, Abstracted 1932 661/) Referred to 1183 4100 Sheet 16, Cooley Ex, 27, Abstracted 1932 6612 Referred to 1183 4100 Rep., Sheet 13, Cooley Ex. 25, x\bstracted 1931 6608 Referred to 1183 4100 Extract from, pp. 12, 21 653 1843 Survey, Sheet 13 of, Zarley Ex. 1, Abstracted 1924 6567 Referred to 874 2625 Mason, Isaac N. : Direct exam 1217 4203 Cross exam 1218 4208 Re-direct exam 1220 4233 Re-cross exam 1221 4240 Mathewson Canal Survey, Tracing of, Orr Ex. 7, Abstracted 1920 6523 Referred to 749 2128 Survey, Blue Print of, Orr Ex. 3, Abstracted 1918 6515 Referred to 929 2887 Mead, Daniel W. : Direct exam 1129 3797 Cross exam 1146 3864 Re-direct exam 1152 3903 Further cross exam 1153 3905 xxxviii -Page of Page of Mead, Daniel W. (continued) : Abstract Transcript Re-direct exam, cont 1153 3909 Recalled, Direct exam 1281 4432 Cross exam 1284 4443 Re-direct exam 1290 4464 Re-cross exam 1290 4465 Recalled 1293 4477 Meander Line, Testimony of Bremer 779 2279 Cooley 845 2516 Rudolph 767 2218 Rudolph 772 2248 Rudolph 773 2253 Mills, Thos. Austin: Direct exam 1030 3406 Cross exam 1035 3437 Re-direct exam 1041 3483 Mississippi River, Early Names (Witness Alvord) 713 2030 Navigation of (Witness Cooley) 798 2355 (Witness Tibbals) 634 1790 (Witness Van Sant) 854 2546 and Lakes, Rep. of Maj. Handbury, on water communication between (read) 652 1839 Missouri River, Navigation of (Witness Cooley) 794 2345 on, U. S. Eng’rs Rep 1189 4125 Rep. of Chief of Eng., 1878 1192 4135 Moline Rapids (Witness Whisler) 1155 3920 Monroe, Geo. ; Direct exam 1461 4939 Cross exam 1465 4949 Montello, 20 Wall., 439, Opinion of Court 933 2915 Monumental Rapids (Gray) 1529 5122 Do 1546 5169 Moore, Robert : Direct exam 994 3222 Cross exam 999 3250 Re-direct exam 1007 3286 Re-cross exam 1008 3293 Re-re-direct exam 1013 3321 Re-re-cross exam 1014 3327 Moses “Illinois Historical & Statistical,” pp. 76-7 (read) 1057 3553 Do., extract from 1058 3555 Referred to 965 3087 “Mosquito” Boats (Sweeney Dep.) 324 603 Motion to strike out Tradition Evidence 957 3003 Ruling on 1223 4242 Motor Boats (Palmer Dep.) 316 583 (Sweeney Dep.) . 320 592 (Witness Cooley) 925 2872 Mud Lake (Witness Cooley) 830 2459 xxxix Page of Page of Abstract Transcript Munch, Xavier, Deposition : Direct exam.. 530 1422 Cross exam 542 1435 Re-direct exam 544 1445 Re-cross exam 545 1449 (Read) 1170 4033 Munroe, Chas. A. : Direct exam 1011 5319 Cross exam 1013 5324 Re-direct exam 1014 5325 Murray, Hugh, Encyc. of Geography, extracts from 212 388 Muskrats, Action of (Witness Cooley) 917 2840 (Witness Mead) 1141 3844 (Witness Wheeler) 1254 4342 Myers, William S., Deposition : Direct exam 530 1385 Cross exam 531 1389 (Read) 1175 4032 N. Narrative and Critical History of America, “Winsor,” (read).... 1047 5421 Part T (read) 1053 5432 p. 179 (read) 1001 5444 pp. 222-6 (read) 1001 5440 Navigable Stream, definition of. Burton Dep 183 307 War Dept., McKenzie 108 200 Witness Cooley 900 2782 Hypothetical question. Burton Dep 185 312 Witness Van Sant 802 2567 Navigation, Early, Evidence, Old Settlers: Depositions : Abbott 454 1097 Adler 561 1513 Alexander 506 1312 Belz 439 1014 Blaess 481 1226 Bowers 421 930 Do 601 1671 Boyne 545 1450 Brockway 458 1113 Burt 569 1554 Chamberlin 606 1684 Clay 472 1196 Clement 391 821 Collins 613 1708 Comstock 586 1622 xl Page of Page of Navigation, Early Evidence, Old Settlers (continued) : Abstract Transcript Conant 495 1265 Countryman 476 1212 Daly 471 1186 Erhard 162 241 Field 598 1660 Flanders ' 429 973 Found 461 1129 Gatons 483 1230 Gurney 532 1391 Hammond 607 1689 Hey decker 204 363 Hicks 435 1004 Hoy 467 1166 E. Jones 461 1132 S. Jones 463 1141 Keen 593 1646 King, D. W 464 1149 King, J. P 581 1602 Killmer 625 1752 Layton 575 1577 McGowan 491 1253 Do 617 1723 Munch 539 1422 Myers 530 1385 O’Brien 610 1697 Paddock 469 1178 Parrent 448 1068 Pohl 444 1046 Raymond 433 996 Reed 155 213 Spoor 418 916 Stevens (W) 401 855 Tanner 460 1124 Taylor 487 1243 Wiggam 311 568 Wightman 425 952 Williams (S) 522 1362 Witnesses : Brockway 1360 4669 Copelantz 1101 3678 Elwood 1110 374^1 Fogarty 1350 4639 Mills 1030 3406 Monroe, G. H 1461 4939 on Kanawha River, Witness Bing 664 1873 IMississippi River, Witness Tibbals 634 1790 on Ohio River, Witness Bing 663 1869 xli Navigation (continued) : Period of, on Canal, Witness Cooley Navigator, The Do., Ruling on motion to strike out Ninety-foot Strip, Fences on (McDonald Dep.) List of leases of, Witness Snyder Norton & Co., Water-power rentals Herbert S., Lease, Canal Commissioners’ to, Apl. 14, 1894, Snyder Ex. 21 (read) Notice of Application for Injunction of Sale of Canal Lands, Copy of Do Published, of proposed sale Nowlin River, Navigation on. Witness Bewley O. O’Brien, Peter, Deposition of : Direct exam Cross exam (Read) Ogden Ditch (Williams Dep.) Witness Cooley Ogden’s' Letters, extract from.....' Ohio River, Navigation on. Imlay Falls of. Rep. U. S. Eng., 1882 Witness Bewley Bewley Bing Cooley McCullough Pryor Okanogan River, Witness Gray Old Settlers, Evidence of Early Navigation (see Navigation, Early.) Oliver, Robt. Shaw, Asst. Sec’y of War, Letters from, of June 7, 1906 Do., in answer Order adjourning Mar. term appointing Judge Mack for Preliminary Injunction Ordinance of 1787, etc Oregon, Map of. Ex. 1, June 16, Abstracted Referred to Orr, Robt. E., Deposition : Direct exam Cross exam Direct exam Cross exam (Read) Testimony, Direct exam Page of Page of Abstract Transcript 1674 5482 718 2042 960 3035 269 500a56 1386 4739 277 500a80 1391 4752 78 83 42 66 45 72 77 71 1018 3346 610 1697 612 1704 1222 4240 347 664 825 2448 730 2071 938 2936 1619 5339 1015 3329 1020 3355 663 1869 799 2356 1177 4044 1025 3383 1517 5092 1300 4492 1300 4492 155 206 153 159 70 42 632 1783 1936 6648 1550 5180 326 610 329 618 381 778 383 783 747 2124 749 2127 xlii Page of Page of Orr, Robt. E, (continued) : Abstract Transcript “Ex. 1,” Map of 111 . and Mich. Canal lands, Abstracted 1917 6511 Referred to 929 2887 “Ex. 2,” Index page of Plat Book No. 2, Abstracted 1918 6513 Referred to 929 2887 “Ex. 3,” Blue print of Matliewson survey, Abstracted 1918 6515 Referred to 929 2887 “Ex. 4,” Extension of Orr “Ex. 3,” Abstracted 1918 6517 Referred to 929 2887 “Ex. 5,” Page 7 of Plat Book No. 1, Abstracted ; 1918 6517 Referred to 929 2887 “Ex. 6,” Survey of Secs. 3, 4 and 5, Town 38, Abstracted. . 1918 6521 Referred to 929 2887 “Ex. 7,” Tracing of Mathewson Canal survey. Abstracted... 1920 6523 Referred to 749 2128 Outline i\Iap of Channahon Township, Will County, Abstracted. . 1916 6490 Referred to 928 2887 Will County, Abstracted 1916 6488 Referred to 928 2887 P. Paddock, Erank, Deposition : Direct exam 469 1178 Cross exam 470 1181 (Read) 662 1867 Motion 956 3006 Palmer, Clarence, Deposition : Direct exam i 316 582 (Read) 853 2543 Palouse Rapids (Witness Gray) 1528 5122 Do 1546 5169 Parkman, “La Salle and Discovery of Great West,” extract from p. 276 1045 3505 Do 975 3137 Do., p. 106 977 3145 Do., p. 21 988 3195 Do., p. 21 1045 3508 Do., p. 339 990 3205 Do., p. 406 1043 3502 Do., pp. 2, 3 18 106 Do., pp. 51-66 733 2080 Parks, G. D. A., Voucher to (read) 1342 4591 Parrent, George Al., Affidavit of 452 1090 Deposition, Direct exam 448 1068 Cross exam 449 1075 (Read) 764 2186 Motion 957 3007 Ruling on motion 1227 4352 xliii Page of Page of Abstract Transcript Patent, Coen, offered in evidence 870 2599 Alex N. Fullerton, Introduced 1605 5299 F. S. Kimberly, Dated 1839, Snyder Ex. 10 (read) 1339 4584 Tunnel Boat Exhibit, Abstracted 1725 5860 Referred to 870 2599 Peace of 1816, Treaty of 762 2180 Peoria, Drowns (read) 959 3018 Perrault, Jean Battiste, Account of 703 1988 Perrin’s Defeat (Witness Gray) 1525 5112 Piepenbrink, H. S., Voucher To, Snyder Ex. 11 1340 4588 Pine Tree Rapids (Witness Gray) 1528 5120 Plan of Dam, Sheet 1, Abstracted 1928 6582 Referred to * 955 2998 Sheet 2, Abstracted 1928 6584 Referred to 955 2998 Plats, Town, see Exhibit, Complainant’s Al to Al2. Pohl, Henry R., Deposition : Direct exam 444 1046 Cross exam 445 1049 Re-direct exam 447 1063 Re-crOss exam 447 1066 Re-re-direct exam 445 1066 (Read) 849 2532 Pole Line Contract, Dam No. 1, Complainant’s Ex. 2 931a 2891 Post & Paul Rep 1073 3613 Postponement of Land Sale, Proceedings Aug. 4, 1904, Canal Com’rs (Snyder Dep.) 252 500all Potomac River (Palmer Dep.) 200 348 Prayer of Bill 26 40 Precipitation at Chicago, U. S. Weather Bureau 1209 4178 Illinois River Basin 1062 3580 Preface, Brown’s Direct 675 1928 Do 678 1831 Preliminary Injunction, order for 70 42 Preston, John D., Report of 810 2389 Priest Rapids (Witnes's Gray) 1517 5093 Do 1521 5102 Proceedings of Canal Com’rs (see Canal Com’rs). Profile Consolidated, Cooley Ex. 3 (see Consolidated). Continental Waterway, Cooley Ex. 37 (see Continental Water- way). Macomb, Cooley Ex. 36 (see Macomb). Marshall, Cooley Ex. 26 (see Marshall). of 1904, Cooley Ex. 21, Abstracted 1930 6596 Referred to 1183 4100 111 . River, Cooley Ex. 29 (see Illinois River). Sanitary Disk, Cooley Ex. 30 (s'ee Sanitary Disk). xliv Page of Page of Profile (continued) : Abstract Transcript Sheet 7, Rep. of Internat’l Deep Waterway Com., House Doc. 192 (see Internat’l Deep Waterway). Sheet 8, Rep. of Internat’l Deep Waterway Com., House Doc. 192 (see Internat’l Deep Waterway). Seddon, Cooley Ex. 15 (see Seddon). Wilson, Cooley Ex. 35 (see Wilson). Woerniann, Woermann Ex. D, June 13 (see Woermann). Pryor, Nathan P. : Direct exam 1022 3369 Cross exam 1025 3379 Re-direct exam 1029 3405 R. Railroad Rates, Effect of Water Competition 334 631 Rambo, J. W. : Direct exam 1160 3955 Cross exam 1162 3965 Re-direct exam 1164 3972 Raymond, George W., Deposition ; Direct exam 433 995 Cross exam 435 1000 (Read) 849 2532 Motion 957 3007 Ruling on motion 1225 4246 Reed, Geo. W., Deposition ; Direct exam 155 213 Cross exam 158 227 Re-direct exam 160 232 Re-cross exam 161 232 (Read) 639 1804 Cross exam ' 647 1825 Motion 956 3005 Ruling on motion 1231 4263 Ruling on obj 158 1805 Do 161 1826 Release Deed of Aug. 19, 1871 (Snyder Ex. 3) 1326 ' 4547 Replication, General 153 157 Report of Board of Engrs. approving watei^way 653 1842 Canal Com’rs (see Canal Com’rs, Rep. of). Chf. of Eng. U. S. A. (see Engineers, Chf. of. Rep.). Comstock Board 652 1841 J. E. Duane, approving river route 653 1842 Major Handbury, iMiss. and Northern Lakes (read) 652 1839 Jacob A. Harmon, 1901 1061 3578 Internal Improvement Com. of III, Cooley Ex. 1, Abstracted 1725 5795 Referred to 804 2367 J. N. Macomb on Tran.sportation Route (read) 651 1837 xlv Page of Page of Report (continued) : Abstract Transcript Sanitary Dist. Lakes to Gulf Waterway, pp, 3, 4, 8, 9 (read) 1186 4116 E. W. Willard, p. 269 (read) 1174 4006 Judge Benj. Wright, of Oct. 23, 1837 (read) 1094 3661 Rescue Island Rapids 1527 5119 Witness Gray 1545 5169 Return on Injunction Writ 78 89 Richards, Isaac W. : Direct exam 1106 3714 Cross exam 1108 3725 Re-direct exam 1109 3742 Riprap, cost of. Witness Mead 1153 3905 Moore 1007 3290 Rudolph 773 2252 Wheeler 1243 4304 Riverside Gauge readings (see Gauge readings). Rock Island Rapids, Map of 1939 6723 Abstracted 1937 6721 Referred to 1615 5328 No. 2, Abstracted 1938 6723 Referred to 1619 5337 Witness McCullough 1177 4039 McKenzie 174 283 Rambo 1161 3959 Whisler 1155 3917 Columbia River, Witness Gray 1517 5093 Do 1519 5097 Do 1546 5171 Rough River, Navigation on. Witness Bewley 1019 3348 Royal Trust Co., Trust Deed of. Economy Light & Power Co. to 1854 6300 Rudolph Ex. 1, Plat of survey of site of Dam, Abstracted 1922 6551 Referred to 771 2244 Emil, Direct exam 765 2194 Cross exam 773 2252 Re-direct exam 775 2259 Re-cross' exam 778 2273 Rulings of Court : On right of Atty. Gen. to sue 787 2329 On motions to strike out Histories 955 3004 Do • 960 3030 On motion to strike out Tradition Evid 1223 . 38 On Bixby Letter 1296 4485 During argument 1717 5571 xlvi Page of Page of Abstract Transcript S. Sackett, Wm. L., Deposition of: Direct exam 218 409 Cross exam 247 492 Re-direct exam 250 500a2 Re-cross exam 250 500a3 (Read) 870 2599 St. Clair Papers, p. 174 728 2067 St. Cosme, extract from 700 1984 Sale of Canal Lands (see Canal Lands). Salt, shipment of on river (Belz Dep.) 440 1017 (E. Jones Dep.) 462 1134 (S. Jones Dep.) 463 1143 (Paddock Dep.) 469 1180 Samilkameen River, Witness Gray 1517 5092 Sanitary District Channel, Witness Cooley 818 2422 Profile, Cooley Ex. 30, Abstracted 1932 6616 Referred to 1183 4100 Gauge readings, Cooley Ex. 13, Abstracted 1730 5999 Referred to 876 2642 of Chicago, Report p. 12 (read) 1121 3777 Report, Lakes to Gulf Waterway, pp. 3, 4, 8, 9 (read) 1186 4116 San Pedro Harbor, Witness Moore 1003 3268 Santee River (]\IcKenzie Dep.) 177 292 Savannah River, Navigation of (^McKenzie Dep.) 177 291 Schaffe, Anna Ida, Direct exam 1639 5389 Schlink, Valentine L. : Direct exam 673 1920 Cross exam 674 1923 Re-direct exam 675 1927 Re-cross exam 675 1927 Schoolcraft Map, Abstracted 1929 . 6592 Referred to 1055 3546 Travels, extract from 1053 3541 Do 1048 3521 Do 740 2099 School Sec. Add. to Juliet, Plat, Complainant’s Ex. A3, Abstracted 1920 6531 Referred to 1279 4422 Seddon Profile, Cooley Ex. 15, Abstracted 1927 6576 Referred to 876 2643 Senate Journal, 111., 1835, extract from 1065 3594 1836-7, Do 1168 3988 Shabbona (Abbott Dep.) 455 1101 (Raymond Dep.) 434 997 Shea, Jno. G., “Early Voyages Up and Down the Mississippi,” extract from 1656 5442 Do 763 2183 xlvii Page of Page of Shea, Jno. G., “Early Voyages” (continued) : Abstract Transcript Letter of St. Cosme 973 3124 Sheet of Plan of Dam (see Plan of Dam). Shepardson, Francis W. : Direct exam 057 3009 Resumed 961 3036 Cross exam 974 3133 Re-direct exam 991 3213 . Siphon, Cost of. Witness Woermann 1476 4981 Description of. Witness Moore 998 3245 Do 1011 3309 Feeder, Witness Wheeler 1268 4388 Site of Dam, title to. Defendant acquired, May 30, ’06 1697 5520 Do., Munroe first acquired, Apr. ’04 1698 5520 Smith, W. R., Wis., Hist, of 740 2101 Snake River, Navigation on, U. S. Eng’rs Rep 1197 4145 Do 1212 4192 Do 1583 5260 Witness Gray 1509 5069 Snyder Ex. (see Exhibit, Snyder). Jno. M., deposition: Direct exam 250 500a4 Cross exam 264 500a42 (Read) 875 2635 Testimony, Direct exam 1291 4470 Recalled 1293 4478 Do 1344 4603 Do 1386 4739 ^Cross exam. 1386 4740 Spoor, Harlow H., Deposition of : Direct exam 418 916 Cross exam 419 921 (Read) 679 ,1941 Motion 957 3006 Ruling on motion 1223 4242 Stevens, Lewis K., Deposition of : Direct exam 547 1461 Cross exam 553 1481 Re-direct exam 559 1505 Re-cross exam 560 1511 (Read) 1211 4189 William W., Deposition of: Direct exam 401 854 Cross exam 413 894 (Read) 679 1934 Motion 956 3006 Ruling on motion 1234 4271 Rulings on obj 407 1935 Do 412 1941 xlviii Page of Page of Abstract Transcript Stikine River, Witness Gray 1534 5133 Stinson, Thos., Deed, Canal Trustees to 1608 5309 Stipulation of Feb. 3, 1908 1714 5567 Feb. 25, 1908 1715 5568 Mar. 23, 1908 1713 5566 Mar. 28, 1908 1715 5569 for Washington depositions 165 259 Signatures of witnesses waived, exhibits retained and pro- duced at trial 387 800 Obj’ns to time and place of hearing waived 629 1773 original certificate, evidence inc. in Trans, of Rec 630 1775 to continue taking of depositions 204 362 witnesses’ need not sign depositions, etc 505 1309 Stone, transportation of, on River (Parrent Dep.) 453 1091 (Lorinier Dep.) 199 348 Sub. plat. Canal trustees (see Canal trustees’ Sub. Plat). Summit, Town plat of, Complainant’s Ex. A9, Abstracted 1921 6543 Referred to 1279 4422 Summons :: ,78 85 Survey, “Ex. 4,” delineation, township line. Town 34, Abstracted 1725 5791 Referred to 766 2205 Sec. 3, 4 & 5, Town 38, Orr Ex. A, Abstracted 1919 6521 Referred to 929 2887 Rep. on. Doc. 263 H. of R 660 1862 Surveyors, Testimony of: Bremer 779 2277 Cooley 794 2342 Rudolph 765 2194 Williams 834 2484 Zarley 870 2660 Sweeney, Jno. M., Deposition: Direct exam 320 592 Cross exam 325 606 Re-direct exam 326 609 (Read) 853 2543 T. Tanner, Riley, Deposition: Direct exam 460 1124 Cross exam 461 1127 Tar River (Burton Dep.) 185 310 Taylor, John W., Deposition : Direct exam 487 1243 Cross exam 489 1249 (Read) 680 1944 Motion 957 3007 Ruling on motion 1231 4262 xHx Page of Page of Abstract Transcript Tax Records, Defendant’s' Ex., Abstracted 1936 6652 Referred to 1565 5228 Tennessee River (McKenzie Dep.) 177 292 Navigation (Witness McCaffrey 1160 3950 Texas Rapids (Witness Gray) 1529 5123 Do 1546 5169 Thevinot’s Map, ]681, Abstracted ]917 6509 Referred to 713 2030 Thvvaites’ “Early Western Travels,” Vol. 2, p. 625 (read) 972 3118 Vol. 9 942 2949 Tibbals, Wm. R. : Direct exam 634 1786 Cross exam 639 1802 Town Plat (see Exhibits, Complainant’s, Al to Al2). Tow-path Bank, Condition of (Witness' Bremer) 783 2314 (Witness Cooley) 908 2798 (Witness Johnston) 1403 4785 (Witness Mead) 1138 3832 (Witness Moore) 996 3232 (Witness Rudolph) 772 2249 (Witness Wheeler) 1244 4306 Do 1258 4356 (Witness Woermann) 1467 4956 Effect of Defendant’s' Works (B. Williams Dep.) 340 645 (Kramer Dep.) 356 693 Tradition Evidence, motion to strike out 957 3003 Ruling on 1223 4242 Translators (Witness Drucker) 1058 3555 (Witness Scaffe) 1639 5389 Treaty of Greenville 760 2175 Peace of 1816 762 2180 Trust Deed, Economy L. & P. Co. to Royal Trust Co., Abstracted 1854a 6302 Offered 1613 5323 Trustees, Canal (see Canal Trustees). Tunnel Boat, Photo, of Interior of, Fox. Ex. 1, Abstracted 1924 6563 Referred to 929 2887 Fox Ex. 2, Abstracted 1924 6565 Referred to 929 2887 U. Umatilla Rapids, Witness’ Gray 1541 5154 Do 1545 5166 Union Bar Rapids, Witness Gray 1515 5086 United States Engineers Reports (see Engineers, U. S., Rep. of). 1 Page of Page of Abstract Transcript V. Van Sant, S. R. : Direct exam 854 2544 Cross exam 860 2562 Direct exam., cont’d 861 2564 Cross exam 864 2573 Velocity, Formula for. Witness Cooley 833 2469 Verification of Bill or Information 28 42 Vermin, Action of. Witness Mead 1141 3844 Witness Wheeler 1253 4340 “Vested rights,” House Doc. 263 1177 3791 Vienna, Town plat of. Complainant’s Ex. A6 1921 6537 Referred to 1279 4472 Voucher, (Snyder Dep.) 254 500al6 to G. D. A. Parks (read) 1342 4591 H. S. Piepenbrink (read) 1340 4568 W. War Dept., Report of, 1900, Part V, p. 3857, etc. (read) 1125 3787 1901, Part 4 (read) 1126 3790 1905, Vol 7, pp. 2455-6 (read) 1203 4159 Warping (Flanders Dep.) 433 992 Warrell, Jas., Rep. of 1485 5006 Warren, Lieut., Rep. of Survey of (read) 1703 5544 Washington, Map of. Ex. 2, June 16, Abstracted 1936 6650 Referred to 1550 5180 “Wash” of Waves (Witness Moore) 1014 3325 Water Power, Proposition submitted for Additional Lease 262 500a37 Rentals, Norton & Co 277 500a80 Watersheds, Map of, Cooley Ex. 16, Abstracted 1927 6578 Referred to 920 2856 Waterway Rep., J. W. Woermann 1433 4870 of Bd. of Engrs., approving . 653 1842 Weekly Flow, Average (see Average Weekly Flow). Werling v. Ingersoll, 181 U. S., 131 269 500a57 Westbrook, Gideon, Deed, Canal Trustees to (read) 1610 5315 West Juliet, Town Plat, Complainant’s Ex. A5, Abstracted 1921 6535 Referred to 1279 4422 Wheeler Ex. 1, Cross Sec. of Hennepin Canal, Abstracted 1934 6628 Referred to 1241 4294 L. L., Direct exam 1239 4286 Cross exam 1253 4335 Do., Rep. of 1890 1275 4410 Whisler, W. W. : Direct exam 1154 3911 Cross exam 1155 3919 Re-direct exam 1156 3928 H Page of Page of Abstract Transcript Whitehorse Rapids (Witness Gray) T536 5140 Do T>45 5107 Wiggam, Wm., Deposition : Direct exam ‘ill 008 Cross exam 014 575 (Read) 1222 4240 Wightman, George S., Deposition : Direct exam 425 952 Cross exam 420 955 Re-direct exam 428 903 Re-cross exam 428 909 (Read) 680 1944 Motion 957 3000 Ruling on motion 1224 4245 Willard, E. W, Report of, p. 209 (read) , 1174 4000 Will County, History of 955 3004 Outline, Map of. Abstracted 1916 6488 Referred to 928 2887 Williams, Benezette, Deposition : Direct exam 330 034 Cross exam 351 075 Re-direct exam 353 084 (Read) 870 2030 Edgar, Direct exam 834 2484 Cross exam 838 2490 Stephen, J., Deposition : Direct exam 522 1302 Cross exam 520 1370 Re-direct exam 529 1382 (Read) 1175 4031 Ruling on obj 522 4031 Wilson, G, A., & Gooding, W., Rep. of 810 2389 Wilson, Gen. Jas. H., Rep. of, p. 0 et seq. (read) 1098 5522 Do., extract from 1115 3705 Do 1484 5005 Do. (see Executive Document 10). Profile, a portion of, Woermann Ex. C, June 13, Abstracted. , 1935 6040 Referred to 1471 4968 Cooley Ex. 35, Referred to 1185 4101 Do 1933 6018 Woermann Ex. 2, Abstracted 1929 6588 Referred to 998 3246 Survey Map, Woermann Ex. B, June 13, Abstracted 1935 6638 Jno. M., Memoir of Butterfield (Shepardson’s testimony)... 964 3079 Referred to 1470 4966 Winsor, Justin, Mississippi Basin 741 2102 Winsor “Narrative & Critical History of America” (read) 1647 5421 lii Winsor “Narrative & Critical History of America,” Extracts Page of Page of from (continued) : Abstract Transcript Do., p. 173 980 3153 Do., p. 177 974 3133 Do., p. 178 978 3147 Do., p. 222 982 31G2 Do., p. 236 984 3180 Do., p. 230 986 3188 Do., p. 179... 1661 5444 Do., p. 234 1665 5454 Do., p. 206 1653 5432 Do., p. 222 1661 5444 Wisconsin, Smith’s 741 2101 River 1624 5350 Wisner, Geo. Y., Rep. of 1119 3774 Woermann Ex. (see Exhibit., Woermann). J. W., Direct exam 1428 4856 Cross exam 1447 4900 Resumed 1452 4905 Cross exam 1456 4923 Direct exam, cont’d 1459 4930 Cross exam, con’td 1459 4932 Recalled 1466 4952 Cross exam 1480 4991 Re-direct exam 1494 5029 Re-cross exam 1499 5041 Re-re-direct exam 1505 5061 Recalled 1604 5296 Do 1668 5460 Waterway Rep 1433 4870 Woodruff’s History, Will County, extract from 401 857 Do., Ruling on 955 3004 Wright, Benj., Report, Oct. 23, 1837 (read) .’ 1094 3661 Writ of Injunction 78 87 Return on 78 89 Y. Yadkin River (Witness McKenzie) 174 284 Yamhill River (Witness Gray) 1353 5131 Yukon River (Witness Gray) 1536 5139 Z. Zarley Ex. 1 Rec’d in Evidence 874 2625 Sheet 13 of Marshall Survey, Abstracted 1924 6567 Referred to 874 2625 Wm. H., Direct exam 870 2600 Cross exam 871 2607 Re-direct exam 871 2608 Re-cross exam 872 2609 IN THE 0f §Uitt0W. ORIGINAL RECORD RETURNED TO October Term, A. D. 1908, AND CAUSE CONTINUED TO February Term, A. D. 1909. PEOPLE OF THE STATE OF ILLINOIS, ex rel. CHARLES S. DENEEN, Gover- nor, and WILLIAM H. STEAD, Attorney General, Appellant^ vs, ECONOMY LIGHT & POWER COMPANY, Appellee, CHANCERY. Appeal from Circuit Court, Grundy County. Honorable Julian W. Mack, (temporarily sitting as Judge of said Court at the request of Honorable Samuel C. Stough, Judge of said Court), Judge, Presiding. ABSTRACT OF RECORD. (We set out lierein the Information in full, then an abridgment or abstract of the same, then the answer in full, and then an ab- stract of the same, for the convenience of the Court.) Page of Transcript. 1 Placita. 2 Information or Bill of Complaint, tiled Dec. 30, 1907 : State of Illinois, ) ^ Grundy County, ) In the Circuit Court Thereof, To the March Term, 1908. To the Honorable the Judges of the Circuit Court of Grundy County, in Chancery Sitting: 3 William H. Stead, the Attorney General of the State of Illi- nois, who sues for the People of the said State of Illinois in 2 this behalf, and at the relation of Charles S. Deneen, Governor of the State of Illinois, conies now here, and in the name and by the authority thereof, gives this Honorable Conrt to understand and be informed, as follows, to wit: I. That the said People of the State of Illinois, by their said Attorney General, bring this their suit against The Economy Light and Power Company, a corporation, duly organized under the laws of the State of Illinois, and having its principal office and place of business at the City of Chicago, in the County of Cook and State of Illinois. II. That in the early history of our country a certain territory, embracing what is now the States of Ohio, Indiana, Illinois, Michi- gan and Wisconsin, was claimed to be owned by Virginia, and that afterwards, by certain Acts of the Legislature of Virginia, and by its deed of cession, bearing date the first day of March, A. D. 1784, said territory was conveyed to the United States, and that after- wards and, to wit, on the 13th day of July, A. H. 1787, the Congress of the United States, then existing under the Articles of Confedera- tion, enacted a certain ordinance entitled, ‘‘An Ordinance for the Government of the Territory of the United States Northwest of the Kiver Ohio,” aud which said Act was and is commonly known as the ordinance of 1787. That among other provisions of said ordi- nance of 1787, Section 14 thereof contains the following: 4 “It is hereby ordained and declared, by the authority afore- said, that the following articles shall be considered as articles of compact, between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit, * * * Article 4. * * The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common high ways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor.” That afterwards, and on, to-wit, the 18th day of May, 1796, said Congress of the United States passed a certain statute entitled, “An Act providing for the sale of the lands of the United States in the territory northwest of the Eiver Ohio and above the mouth of the Kentucky Eiver,” and by Section 9 thereof provided as follows : 3 ‘‘Sec. 9. And be it further enacted that all navigable rivers within the territory to be disposed of by virtue of this Act, shall be deemed to be and remain public highways.’’ That thereafter, and to wit, hy a statute duly passed by the Con- gress of the United States on the 7th day of May, 1800, entitled, “An Act to divide the territory of the United States northwest of the Ohio into two separate Governments,” there was divided and set apart from said Northwestern territory a certain portion thereof which 'embraces all of what is now the State of Indiana and the State of Illinois, and provided the same should constitute a separate territory, to be called the Indiana Territory. 5 That thereafter the Congress of the United States, acting under the constitution of T789, for the further government of certain portions of the said Northwestern Territory, and on, to wit, the 26th day of March, 1801, duly passed a certain statute en- titled, “An Act making provision for the disposal of the public lands in the Indiana Territory, and for other purposes”; and by Section 6 thereof, it was provided that “All the navigable rivers, creeks and waters within the Indiana Territory shall be deemed to be and remain public highways.” That afterwards the Congress of the United States, by its Act of February 3, 1809, entitled “An Act for Dividing the Indiana Territory into two separate Governments,” provided, among other things, that that portion of the said Indiana Territory which now comprises the State of Illinois, for the purposes of temporary government, should constitute a separate territory to be called Illinois; and that among other and further provisions in said Act it is provided : “That there shall be established within the said territory a government in all respects similar to that provided by the ordinance of Congress passed on the 13th day of July, 1787, for the government of the territory of the United States, northwest of the River Ohio; and by an Act passed on the 7th day of August, 1789, entitled, ‘An Act to provide for the Gov- ernment of the Territory Northwest of the River Ohio;’ and the inhabitants thereof, shall be entitled to and enjoy all and singular the rights, privileges and advantages, granted and secured to the people of the Territory of the United States northwest of the River Ohio by said ordinance.” That afterwards, and, to wit, on the 18th of April, 1818, 4 6 the Congress of the United States enacted another statute, en- titled, ‘^An Act to enable the people of Illinois to form a con- stitution and State government, and for the admission of such State into the Union, on an equal footing with the original States,” which statute contains the following provision : ^^Sec. 4. And be it further enacted Provided, That the same, whenever formed, shall be republican, and not repugnant to the ordinance of the 13th of July, 1787, between the original States and the people and States of the territory northwest of the Eiver Ohio, excepting so much of said articles as relates to the boundaries of the States therein to be formed : * * * ? ? That afterwards the people of the Illinois territory duly adojDted the constitution known as the Constitution of 1818, the preamble of which contains the following, to wit : ^^The people of the Illinois Territory, having the right of admission into the general government as a member of the Union, consistent with the Constitution of the United States, the Ordinance of Congress of 1787, and the law of Congress, ai3proved April 18, 1818, entitled U\n Act to enable the people of the Illinois Territory to form a Constitution and State gov- ernment, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes’; in order to establish justice, promote the welfare, and secure the blessing of liberty to themselves and their pos- terity, do, by their Eepresentatives in convention, ordain and establish the following Constitution or form of government, and do mutually agree with each other to form themselves into a free and independent State, by the name of the State of Illinois.” That afterwards, and, to wit, on December 3rd, 1818, the Con- gress of the United States adopted a certain resolution entitled, ‘^Eesolution declaring the admission of the State of Illinois into the Union,” which declared, among other things, that the 7 ‘‘Constitution and State government, so formed, is republican, and in conformity to the principles of the articles of compact between the original States and the people and States in the terri- tory northwest of the Eiver Ohio, passed on the 13th day of July, 1787: ^ ^ III. That the Eiver Desplaines is situated in said territory, and rises in what is now the State of AYisconsin, and flows in a south- erly direction into the State of Illinois, and through the Counties 5 of Lake and Cook and between Du Page and Cook Counties therein, and through the County of Will and into Grundy County, in all a distance of about 96 miles. That the Eiver Kankakee rises in Indiana and flow^s westerly therefrom into Illinois through Kankakee and Will Counties and into Grundy County therein, where it unites with the Desplaines River, and with the said Desplaines River forms the Illinois River, which last named river flow^s thence westerly and southwesterly through several counties of Illinois into the Mississippi River. Wherefore and by reason whereof your orators charge the fact to be that the Desplaines River is wholly within the territory orig- inally comprising what was known as the Northwestern Territory, and that the same empties its waters into the Mississippi River, and, by reason of the facts hereinafter set forth, is subject to the provisions of the said Acts of Congress, 8 IV. Your orators further show unto your Honors that it is shown by the history of the explorations and discoveries of the territory in what is now the northern part of Illinois, that at the time of the explorations and discoveries, the Desplaines River was navigable from a point near where is now situated the City of Chicago, in the State of Illinois, to the mouth of said Desplaines River, in what is now Grundy County, Illinois; that l)y the same history it is shown that the portion of the Desplaines River last above mentioned was used in the early period of the State of Illi- nois as a highway for commercial purposes; that commerce was carried on over said river and over the Chicago River, located in Cook County, Illinois, and connection therewith made by a short portage between the two rivers near the site of what is now the City of Chicago, Cook County, Illinois, and was in use as the high- way of commerce, leading from Lake Michigan and the wmters emptying into the St. Lawrence River on the one hand, to the Illi- nois River and the waters of the Mississippi River on the other hand, thenceforward from the time of said first use up to and at the lime when the said ordinance of 1787 and the several acts of Congress were respectively enacted. That afterwards the State of Illinois, by and through the Legis- lature thereof, and in obedience to the several Acts of Congress 6 hereinbefore set forth, assumed and took charge of the said 9 Desplaines Eiver, and in the exercise of its control over the said Desplaines Kiver, did by its certain act, entitled, ‘‘An Act to authorize the building of a bridge across the Desplaines Eiver,’’ approved and in force February 19, 1839, give pennission for tlie building of a toll bridge across the Desplaines Eiver, on the northeast quarter of Section number eleven (11), in Township number thirty-nine (39) north, in Eange number twelve (12), east of the Third Principal Meridian; and also, by the same act, permission was given to build another bridge across the same river, on the southeast quarter of Section number two (2) in the same Town and Eange last above mentioned; and that afterwards the Legislature of the State of Illinois passed a certain law, en- titled, “An Act to amend the several laws in relation to the Illinois and Michigan Canal,” in force February 26, 1839, which contains, among other provisions, the following, to wit: “Sec. 2. Sub-section 9: That no stream of water passing through the canal lands shall pass by the sale so as to deprive the State from the use of such water if necessary to supply the canal without charge for the same.” And that Sub-Section 11 of said Section 2 of said Act is in the words as follows, to-wit: “Sub-Sec. 11. Lands situated upon streams which have been meandered by the surveys of public lands by the United States shall be considered as bounded by the lines of those surveys, and not by the streams.” 10 That afterwards the Legislature of the State of Illinois, by its certain law then passed, entitled, “An Act declaring the Desplaines Eiver a navigable stream,” approved and in force February 28, 1839, provided as follows: “Sec. 1. Be it enacted by the people of the State of Illi- nois, represented by the General Assembly, That the Des- plaines Eiver from the point where it most nearly connects itself with the Illinois and Michigan Canal to its source with- in the boundaries of this state, is hereby declared a navi- gable stream, and shall be deemed and held a public highway, and shall be and remain free, open and unobstructed from said point of connection with said canal to its utmost limit within this state for the passage of all boats and water crafts of every description;” And that afterwards the Legislature of the State of Illinois, 7 by its statute passed and in force March 3, 1845, entitled ‘‘An Act to authorize Stephen Forbes, to construct a dam across the Desplaines Fiver in Cook County,’^ provided as follows, to- wit : “Sec. 1. Be it enacted by the people of the State of Illinois, represented by the General Assembly, that Stephen Forbes, or his heirs, and assigns, be, and they are hereby au- tliorized to construct, build and continue a mill dam across the Desplaines Eiver, on the southwest quarter of Section thirty- six (36), in township No. thirty-nine (39) north of range twelve (12), east, and on the northeast quarter of Section two (2), township No. thirty-eight (38) north of range twelve (12), east, in the County of Cook in this state; ])rovided that this Act shall not operate to prevent the state from im])rov- ing said river by dams, or from using the water in said river for the Illinois and Michigan Canal at any time hereafter, or for any other purpose; provided, that he shall be liable for any damage to any individual in consequence of the erection of such dam.’’ And that afterwards the Legislature of the State of Illinois, by its certain law, entitled, “An Act authorizing the building of a bridge and road in township 36 north, range 10 east, in Will 11 County,” approved and in force February 12, 1849, author- ized the construction of a bridge over the Desplaines Eiver at I^ockport in Will County, Illinois. That afterwards the Legislature of the State of Illinois, by its certain act, entitled “An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers,” ap- proved May 29, 1889, in force July 1, 1889, among other things provided as follows: “Sec. 23. If any channel is constructed under the provis- ions hereof by means of which any of the waters of Lake Michigan shall be caused to pass into the Des Plaines or Illinois Eivers, such channel shall be constructed of sufficient size and capacity to produce and maintain at all times a con- tinuous flow of not less than three hundred thousand cubic feet of water per minute, and to be of a depth of not less than fourteen feet, and a current not exceeding three miles per hour, and if any portion of any such channel shall be cut through a territory with a rocky stratum where such rocky stratum is above a grade sufficient to produce a depth of water from Lake Michigan of not less than eighteen feet, such portion of said channel shall have double the flowing capacity above provided for, and a width of not less than one hundred and sixty feet at the bottom capable of producing a depth of not less than eighteen feet of water. If the population of the district drained into such channel shall at any time exceed one million five hundred thousand, such channel shall be made and kept of such size and in such condition that it will produce and maintain at all times a continuous flow of not less than twenty thousand cubic feet of water per minute for each one hundred thousand of the population of such district, at a current of not more than three miles per hour, and if at any time the general government shall improve the Des Plaines or Illinois Bivers, so that the same shall be capa- ble of receiving a flow of six hundred thousand cubic feet of water per minute, or more, from said channel, and shall pro- vide for the payment of all damages which any extra flow above three hundred thousand cubic feet of water per minute from such channel may cause to private property so as to save harmless the said district from all liability therefrom, then such sanitary district shall within one year thereafter, enlarge the entire channel leading into said Desplaines and Illinois Bivers from said district to a sufficient size and ca- pacity to produce and maintain a continuous flow throughout the same of not less than six hundred thousand cubic feet of water per minute with a current of not more than three miles per hour, and such channel shall he constructed upon such grade as to he capable of producing a depth of water not less than eighteen feet throughout said channel, and shall have a width of not less than one hundred and sixty feet at the bottom. In case a channel is constructed in the Desplaines Biver as contemplated in this section it shall he carried down the slope between Lockport and Joliet to the pool commonly known as the upper basin, of sufficient width and depth to carry off the water the channel shall bring down from above. The district constructing a channel to carry water from Lake Michigan of any amount authorized by this act may correct, modify and remove obstructions in the Desplaines and Illinois Bivers wherever it shall he necessary so to do to pi’event over- flow or damage along said river, and shall remove the dams at Henry and Copperas Creek in the Illinois Biver, before any water shall he turned into the said channel. And the Canal Commissioners, if they shall find at any time that an additional supply of water has been added to either of said rivers, by any drainage district or districts, to maintain a depth of not less than six feet from any dam owned by the State to and into the first lock of the Illinois and Michigan Canal at La Salle, without the aid of any such dam, at low water, then it shall he the duty of said Canal Commissioners to cause such dam or dams to be removed. This act shall not he construed to authorize the injury or destruction of existing water power rights.” 9 And also in the same Act it is provided: ‘‘Sec. 24. When such channel shall be completed and the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream, and whenever the general government shall improve the Desplaines and Illinois Rivers for navigation; to connect with this channel, said general government shall have full control over the same for navigation purposes, but not to in- terfere with its control for sanitary drainage purposes.” 13 That afterwards the Legislature of the State of Illinois on the 14th of May, 1903, enacted a certain statute which be- came in force on the 1st of July, 1903, entitled, “An Act in rela- tion to the sanitary district of Chicago, to enlarge the corporate limits of said district, and to provide for the navigation of the channels created by such district and to construct dams, water wheels and other works necessary to develop and render avail- able the power arising from the water passing through its chan- nels, and to levy taxes therefor,” which said Act contained, among other things, the following provisions, to-wit : “Sec. 3. Said Sanitary District shall ])ermit all water craft navigating or purposing to navigate said Illinois and Michigan Canal, to navigate the water of all said channels of said Sanitary District jH'omptly, without delay and with- out the pajunent of any tolls or lockage charges for so navi- gating in said channels. The rules of the United States Gov- ernment now in force, regulating navigation on the (Uiicago River, shall govern navigation on the channels of said Sani- tary District of Chicago; Provided, however, that the speed of all vessels while passing through the earth sections shall not exceed eight miles per hour.” “Sec. 8. The said Sanitary District shall, at the exjjense of said district, in all respects comply with the provisions of the Act of Congress of March 22, 1822, and March 2, 1827, as construed by the courts of last resort of the State of Illinois, and of the United States in relation to the Illinois and Mich- igan Canal, so far as it affects that portion of the Illinois and Michigan Canal vacated or abandoned in the terms of this Act.” And your orators show that after the passage of the said statute of May 29, 1889, a Sanitary District was formed in pur- suance thereof, known as the Sanitary District of Chicago, and said Sanitary District of Chicago has constructed a channel 14 substantially in compliance with the provisions of said stat- ute. That said channel begins at a point of junction with the 10 Chicago River in the City of Chicago and extends southwesterly through the County of Cook into the County of Will, where it connects with and empties its water into the Desplaines River, and is now and for several years fast past has been discharging into said Desplaines River at a point north of Joliet in Will County, a body of water drawn from Lake Michigan through the Chicago River and through said drainage channel, amounting to about 300,000 cubic feet of water per minute, and your orators show that said body of water mingles with the waters of the Des- plaines River, and flows thenceforward through the course of the Desplaines River to the mouth of said river, on Section number twenty-five (25), Township number thirty-four (34) North, Range number eight (8) East of the Third (3rd) Principal Meridian in Grundy County. That afterwards the Legislature of the State of Illinois en- acted its certain statute, and the same became in force by approval from and after the 6th day of December, 1907, as follows, to- wit : Bill for an Act recognizing the Desplaines and Illinois Rivers as navigable streams and to prevent obstructions being placed therein, and remove obstructions therein now existing. Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly : That the Des- plaines and Illinois Rivers throughout their courses from and below the water power plant of the main channel of the San- 15 itary District of Chicago in the Township of Lockport, at or near Lockport, in the County of Will, are hereby recognized as and are hereby declared to be navigable streams ; and it is made the special duty of the Governor and of the Attorney General to prevent the erection of any structure in or across said streams without explicit authority from the General Assembly ; and the Governor and Attorney General are hereby authorized and directed to take the necessary legal action or actions to remove all and every obstruction now existing in said rivers that in any wise interferes with the intent and purpose of this Act. Sec. 2. Whereas, an emergency exists ; this Act shall be in force and effect from and after its passage.’’ Tliat the Relator, Charles S. Deneen, is the Governor referred lo in said statute, and that he by virtue and reason of said stat- ute, and the direction therein contained, as well as by virtue of his office as Governor, and his constitutional duty to take care n tliat the laws be faithfully executed, has a special interest and responsibility in the matters herein set forth. Your orators further show that the Desplaines Kiver has, from the time when said ordinance of 1787 was passed by the Congress of the United States unto the present time, formed in its ordi- nary condition, and by itself, to the extent of its course, from tire point of said portage and connection with the Chicago Eiver in Cook County, Illinois, to its mouth in Grundy County, Illinois, and then forward by uniting with the said Illinois Eiver, a continued highway with water in sufficient volume and of sufficient depth to afford a channel for navigable and commercial purposes. Wherefore and by reason whereof your orators charge the fact to be that the Desplaines Eiver from near the City of Chicago, in Cook County, Illinois, to the mouth of said river in Grundy County, Illinois, has been from the earliest knowledge of* said river until the present time in law and in fact a navigable river, and that the several Acts of the Legislature hereinbefore 16 recited show the fact to be that it has been and is the policy of the State of Illinois to hold and maintain said ])esplaines Eiver to be a navigable river, and so l)eing a navigalde river both in law and in fact, said river is subjected to the provisions of the several Acts of Congress hereinbefore set forth, and by reason whereof the said Desplaines Eiver has been and still continues to be a highway of commerce, and as such is preserved for the use of the people of the State of Illinois, and the people of all the States of the United States as a public highway, and has not been alienated from the rights of the people as a public highway, and that the people of the State of Illinois and of the United States have an easement over said river as a public highway for commerce, and that said river and the bed and waters thereof are permanently impressed and burdened with said easement and with a public right and public use of navigation. The Eiver Was Meandered. V. Your orators further represent unto your Honors that by an Act of Congress of the United States, approved March 2, 1827, the Congress of the United States granted to the State of Illinois every 12 alternate section in a strip of land ten miles wide along the line of the Illinois and Michigan Canal for the purpose of aiding the open- ing of a canal to connect the waters of the Illinois river with those of Lake Michigan, and that among the lands thus conveyed by the Congress of the LMited States to the State of Illinois, is Section number twenty-five (25), in Township number thirty-four (34) North, in Eange eight (8), East of the Third (3rd) Principal Meri- dian, in Grrnndy County, Illinois. That the legislature of the 17 state of Illinois, in the exercise of its power and control over said lands, last above described, and other lands received from the Congress of the United States, as above stated, by its certain act entitled, ‘L\n Act to amend the several laws in relation to the Illinois and Michigan Canal,’’ in force February 26, 1839, enacted the following provision, to wit: ‘‘Section 2, Snb-Sec. 11. Lands situated upon streams which have been meandered by the surveys of public lands by the United States shall be considered as bounded by the lines of those surveys and not by the streams.” That the Desplaines river and the Kankakee river unite and form the Illinois river in the southeast quarter of said Section number twenty- five (25) in Township number thirty-four (34) North, in Eange number eight (8), East of the Third (3rd) Prin- cipal Meridian, in Grundy County aforesaid, and that, by the sur- vey of public lands by the United States said Desplaines river was ineandered. Your orators are informed and believe, and upon such informa- tion and belief charge the fact to be, that the purchasers from the State of Illinois of lands in said Section twenty-five (25), above de- scribed, and other similarly situated lands with reference to the Desplaines river, did not take, and did not claim to take under their several purchases that portion of said lands lying between the meander line of the Desplaines Eiver and the waters of said river; and that said lands between said meander line and the water of said Desihaines Eiver have never been used by any individual, under any claim of authority or right vested in said purchasers of said lands from the State of Illinois, save and except as claimed by the 18 defendant. AVherefore, and by reason whereof, your orators charge the fact to be that the lands lying between the mean- i:] der line of the Desplaines Eiver and the waters of said river, in the southeast quarter of said Section number twenty-five (25), in Township number thirty-four (34) North, in Eange number eight (8), East of the Third (3rd) Principal Meridian, in Grundy County, Illinois, together with the bed of the stream of the said Desplaines Eiver, in said quarter section of land last described above, and other lands similarly situated with reference to the Des- plaines Eiver, have not passed by any purchase of adjoining lands fi*om the State of Illinois, and that the same, and each and every part thereof, is owned by the State of Illinois, and held by said State for the use and benefit of the People of the State of Illinois, and of the People of the United States, as a ])uhlic highway for commerce. VI. Your orators further state unto your Honors that the Trus- tees of the Illinois and Michigan Canal executed and delivered to one Charles E. Boyer, a deed hearing date as of the 22nd day of October, 1860, for certain tracts of land described therein as fol- lows, to wit: ‘^The south fraction of the northwest quarter, and the north fraction of the southeast quarter, and the north fraction of the northwest quarter, and the south fraction of the southeast quarter of said Section 25, in Township 34 North, of Eange 8, East of the Third Principal Meridian, excepting and reserving so much of said tract as is occupied by the canal and its waters, 19 and a strip 90 feet wide on either side of said canal, containing 196.62 acres, more or less, said tract being a portion of the land granted by the United States by the Act of March 21, 1827, and the 28th day of August, 1854, to the State of Illinois, to aid said State in opening a canal to connect the waters of the Illinois Eiver with those of Lake Michigan, and by said State granted to the said Board of Trustees of the Illinois and Michigan Canal for the purposes set forth in said Act of said State of February 21, 1843.’’ And your orators further state unto your Honors that the Legis- lature of the State of Illinois, by its certain act approved and in force February 26, 1839, enacted as follows, to wit: ‘‘Sec. 2, Sub-Sec. 9. That no stream of water passing through canal lands shall pass by the sale so as to deprive the State from the use of such water if necessary to supply the canal without charge for the same.” “Sec. 2, Sub-Sec. 11. Lands situated upon streams which have been meandered by the surveys of public lands by the 14 United States shall be considered as bounded by the lines of those surveys and not by the streams.” Wherefore your orators charge that no part of the land in the northwest quarter and in the southeast quarter of said Section number twenty-five (25) in Town thirty-four (34) North, in Eange eight (8), East of the Third (3rd) Principal Meridian, lying and being situated outside of the meander line of the Desplaines Piver, were conveyed by said deed to the said Charles E. Boyer, and that the same remain the property of the State of Illinois. And your orators further state that the claim of the defendant, the Economy Light and Power Company, to said i^ortion of 20 said premises so situated outside of the meander line of the Desplaines Eiver, and in said Section number twenty-five (25), is based upon mesne conveyances from the said Charles E. Boyer, and the several contracts and leases hereinafter set forth. Nixety-Foot Strip. VII. That on March 2, 1827, the Congress of the United States passed a certain act entitled ‘L\n Act to grant a quantity of land to the State of Illinois for the purpose of aiding in opening a canal to connect Ihe waters of the Illinois Eiver with those of Lake Michigan,” in which, among other things, it was provided as follows : “That there be, and hereby is, granted to the State of Illi- nois, for the purpose of aiding the said state in opening a canal to unite the waters of the Illinois Eiver with those of Lake Michigan, a quantity of land equal to one-half of five sec- tions in width, on each side of said canal, and reserving each alternate section to the United States, to be selected by the Commissioner of the Land Office, under the direction of the President of the United States, from one end of said canal to the other ; and the said lands shall be subject to the disposal of the Legislature of the said state, for the purpose aforesaid, and no other.” That in and by said Act of March 2, 1827, said Congress granted, by implication, the right of way for the construction of said canal through the sections of public lands which were not donated to the State in aid of said canal ; and that the said grant of right of way by implication extended to the land necessary to be used for the canal of the width contemplated. 15 That afterwards such proceedings were had, pursuant to law and to said statute, that the route and location of said canal were 21 duly surveyed and laid out, and the odd numbered sections of lands upon the survey of the same as Public Lands by the Sur- veyor General of the United States bordering said canal and with- in five miles on each side of said canal, commencing with Township number thirty-two (32) North, of Eange number one (1), East of the Third (3rd) Principal Meridian, were duly selected, by said Commissioner of the Land Office, under the direction of the Presi- dent of the United States (except 21 exterior sections, not now in- volved), and said selections as confirmed included said Section 25, Township 34 North, Eange 8, East of the Third Principal Meridian, and Sections 31, 29, 21, 15, 11, all in Township 34 North, Eange 9, East of the Third Principal Meridian, and Sections 31, 29, 21, all in Township 35 North Eange 10, East of the Third Principal ]\Ieri- dian, and said Board of Commissioners of the Illinois and Michi- gan Canal laid out said canal, through said last named sections, and began the construction thereof, and provided for the reservation of a 90-foot strip of land on each side thereof for use as a tow path and as part of the canal throughout the length thereof. That afterwards, in the years 1847 and 1848, Artemas J. Mat- tliewson, a surveyor and engineer, under the authority and direc- tion of the Canal Trustees herein elsewhere referred to, surveyed and marked the lines of a 90-foot strip on each side of the canal as finally located and constructed from one end thereof to the 22 other, and prepared and filed in the office of said Board of Trustees maps and profiles of said survey, and the said 90-foot strip so laid otf and surveyed by said Matthewson on each side of the canal as aforesaid, was reserved from sale by the Canal Com- missioners and Canal Trustees in sales of canal lands in said odd numbered sections, and title thereto remains in the State of Illi- nois ; and said strip, together with the lands necessary for right of way through the alternate even numbered sections of land through which said canal was constructed, constitute integral parts of the said canal, and are necessary for its preservation and use, and are, by law, preserved and protected against alienation ; and said 90-foot strip was so expressly reserved from sale in said deed by said 16 Trustees of the Illinois and Michigan Canal to said Charles E. Boyer. 23 VIII. Your orators further represent unto your Honors that the Canal Commissioners of the State of Illinois entered into a certain contract, bearing date as of the 2nd day of Septem- ber, 1904, with one Harold F. Griswold, and which said contract, as your orators are informed and believe, and upon such informa- tion and belief charge the fact to be, was, by the said Harold F. Griswold, assigned, so that' by mesne assignments the same was purported to pass to The Economy Light & Power Company, the defendant in this cause, a copy of which said contract is hereto attached and marked Exhibit A, and hereby made a part of this bill. And your orators further state unto your Honors that they are informed and believe, and upon such information and belief charge the fact to be that the said Canal Commissioners entered into a con- tract of lease with one Harold F. Griswold as of the date of the 2nd day of September, 1904, a copy of which said lease is hereto at- tached and marked Exhibit B, and hereby made a part of this hill ; and which said lease was, as your orators are informed and believe, assigned by the said Harold F. Griswold, so that by mesne assign- ments the same was purported to pass, to The Economy Light & Power Company. And your orators further inform the court that they are in- formed and believe, and upon such information and belief charge the fact to be, that the Canal Commissioners entered into another certain contract with the said Harold F. Griswold as of the date of the 8th day of August, 1905, a copy of which said contract is 24 hereto attached and marked Exhibit C, and hereby made a part of this bill, and which said contract was, as your orators are informed and believe, assigned by the said Harold F. Griswold, so that by mesne assignments the same was purported to pass to The Economy Light & Power Company. ' Your orators further state unto your Honors that the Canal Commissioners of the State of Illinois made an application to the Governor of the State of Illinois for his consent to the sale of cer- tain lands, and which said application bears date as of the 11th day 17 of June, 1904, a copy of wliicli said application is hereto attached, marked Exhibit D, and hereby made a part hereof; and that a copy of the approval of said application for said sale by the Governor of the State of Illinois, as of the date of the 14th day of June, 1904, is hereto attached and marked Exhibit E, and hereby made a part of this bill. And your orators further state unto your Honors that in pur- suance of said application for sale, and the approval of said appli- cation by the Governor, as aforesaid, there was inserted in the Lockport Phoenix- Advertiser, a newspaper of general circulation, printed and published in the Village of Lockport, in the County of Will, and State of Illinois, a certain notice of said proposed sale, a copy of which said notice, together with the certificate of publica- tion thereof, is hereto attached and marked Exhibit F, and hereby made a part of this bill. And your orators further state unto your Honors that 25 in and by said notice last above mentioned, the premises there- in described were advertised to be sold on the 2nd day of Au- gust, 1904, at 10 o’clock in the morning for cash, at the canal office in Lockport, Will County, in the State of Illinois; and your orators further state that no sale of said premises occurred on the 2nd day of August, 1904, in pursuance of said notice, but that the sale so advertised to be made was adjourned, and never thereafter re- sumed. Your orators further rej^resent unto your Honors that after the 2nd day of August, A. H. 1904, and under date of September 2, 1904, the Canal Commissioners of Illinois entered into the agree- ment and lease hereinbefore mentioned, and marked respectively Exhibits A and B, and that afterwards, and, to wit, under date of November 1, 1904, the Canal Commissioners of the State of Illinois made an application to the Governor of the State of Illinois for liis consent to the sale of certain lands in said application described, a copy of which application is hereto attached and marked Ex- hibit G, and hereby made a part of this bill; and that the ap- proval of said application for sale by the Governor of the State of Illinois was made in writing, a copy of which said approval, bear- ing date as of the 2nd day of Nevember, 1904, is hereto attached and marked Exhibit H, and hereby made a part of this bill. That 18 in pursuance of said application and approval a notice of sale was inserted in the Lockport Phoenix- Advertiser, a weekly 26 newspaper of general circulation, a copy of which said motion, together with the certificate of publication thereof, is hereto attached and marked Exhibit I, and hereby made a part of this bill. And your orators further state that in pursuance of said appli- cation last above mentioned for the sale of certain lands, and the approval of the Governor thereof, and of the advertisement in the Lockport Phoenix-Advertiser last above mentioned, the said Canal Commissioners, as your orators are informed and believe, and upon such information and belief charge the fact to be, sold, and executed a certain deed to Harold E. Grisv/old as of the date of the 6th day of January, 1905, a copy of which said deed is hereto at- tached and marked Exhibit J, and hereby made a part of this bill ; and, as your orators are informed and believe, the said Harold E. Griswold conveyed said premises, so that by mesne conveyances the same were purported to pass to The Economy Light & Power Company, the defendant in this cause. Your orators further state unto your Honors that they are in- formed and believe, and upon such information charge the fact to be that the said Canal Commissioners entered into a contract of lease with Harold F. Griswold as of the date of September 2, 1904, a copy of which said lease is hereto attached and marked Exhibit K, and hereby made a part of this bill, and which said lease, as your orators are informed and believe, was assigned by the said Griswold, so that by mesne assignments the same were purported to pass to The Economy Light & Power Company, the defendant here- in. And so it is, as your orators are informed and believe, 27 and upon such information and belief charge the fact to be, that the said Economy Light & Power Company, claiming to act by pretended right, authority and virtue of the several deeds, leases and contracts hereinbefore mentioned, claims the right to construct a dam across the Desplaines Eiver and across certain lands adjacent thereto, and across the 90-foot strip of land so used for canal purposes, and immediately adjoining the waterway of the said Illinois and Michigan Canal, and upon the bank or tow 19 path of the said Illinois and Michigan Canal, and so to construct said dam as to flood the lands along the Desplaines Eiver for a dis- tance of several miles, to wit, the distance of ten miles, or there- abouts, above the location of said proposed dam, and which said location of said proposed dam is on the southeast quarter of Sec- tion No. 25 in Towmship No. 84 North, in Range No. 8 East of the Third Principal Meridian, in Grundy County, Illinois, and that in pursuance of said claim of right on its part said Economy Light and Power Company has commenced the construction of a dam across said Desplaines River and across the lands as hereinbefore set forth, but your orators aver that the said several leases, deeds and contracts are ineffectual to confer any right to build or main- tain said dam. Your orators further state unto your Honors that the General Assembly of the State of Illinois has, by its proper resolution, duly passed by the Senate and concurred in by the House of Repre- sentatives of said General Assembly on, to wit, the 16th day of Oc- tober, 1907, a copy of which is hereto attached, marked Exhibit L, and made a part hereof, proposed the building of a deep water- way, commencing at the southern end of the Chicago Drainage Canal and extending southwesterly along the line of the Des- 28 plaines and Illinois Rivers, in accordance with plans and speci- fications formulated by the corps of engineers of the United States Army, under and by direction of a certain Act of the Con- gress of the United States ; and that the proi)osition so proposed by the Legislature of the State of Illinois has been authorized by the said -Legislature of Illinois to be submitted to a vote of the people of the State of Illinois, authorizing the construction of said dee^) waterway, and if the same is built, as an incident thereto, locks and dams, with special provisions for navigation, and securing and safe guarding the passage of boats, will necessarily be constructed across said deep waterway in the channel of the Desplaines River at or near the said southeast quarter of Section number 25, in Township number 34 North, in Range number 8 East of the Third Principal Meridian in Grundy County, Illinois, which said dams will incidentally afford water power of great value, to wit, of the value of several millions of dollars to the State of Illinois, and which said water power, so necessarily incidentally created, will be 20 lost to the State of Illinois if the said Economy Light and Power Company, the defendant herein, shall he permitted to construct the dam herein mentioned. And your orators deny the right and authority of the Trustees of the Illinois and Michigan Canal, or of the Canal Commissioners of the State of Illinois, to convey the lands composing the bed 29 of the stream of the Desplaines Eiver, or any part or portion of the lands of said Section number 25 last above described, outside of the meander line of the Desplaines Eiver. And your orators further charge that the ninety foot strip of land along the line of the Illinois and Michigan Canal is necessary for the proper maintenance and use of the Illinois and Michigan Canal and constitutes a necessary integral part of said canal, and being so necessary for the use of the said Illinois and Michigan Canal and its maintenance, and being so an integral part of the said canal, -the Trustees of the Illinois and Michigan Canal did not have, and the Canal Commissioners of the State of Illinois had not and does not now have, the right and authority under the law, to con- vey the same by deed, lease or otherwise. Wherefore, and by rea- son whereof your orators charge the fact to be that the Economy Light and Power Company, the defendant herein, has not acquired any right, title or interest in and to the bed of the stream of the Desplaines Eiver, or that portion of said Section 25 last above described lying and being outside of the meander line of the said ^ Desplaines Eiver, or in and to the 90 foot strip of land lying be- tween the waters of the Illinois and Michigan Canal and the said Desplaines Eiver, and said deeds, leases, contracts and other agree- ]nents, in so far as they pertain to the bed of the stream of the Desplaines Eiver, and to the lands lying outside of the meander 30 line, and to the 90 foot strip of land so reserved for the use of the Illinois and Michigan Canal, and so located in the south- east quarter of Section number 25 last above described, are void and of no effect. And your orators charge the fact to be that by virtue of the sev- eral enactments of the Congress of the United States as hereinbe- fore set forth, and of the several acts of the Legislature of the State of Illinois as hereinbefore set forth, the bed of the Desplaines Eiver is owned by the State of Illinois, and that the same has not been 21 conveyed by any deed to anybody wliomsoever, and that the lands on said Section number 25 last above described, and other sections of land along the line of the ])esplaines Eiver, so granted to the State of Illinois by the Act of Congress hereinbefore referred to- outside of the meander line of said stream, to wit, the Des- ])laines Eiver, have not been conveyed by the State of Illinois nor by any other person or persons or corporation whomsoever having authority so to convey the same, and that the same remain and are owned by the State of Illinois. IX. Your orators further state unto your Honors that notwith- standing the rights and interests of the people of the State of Illi- nois, as hereinbefore set forth, the Economy Light & Power Com- pany, a corporation, claims or pretends to claim to be the owner of the bed of the stream of the Desplaines Eiver and other lands in said southeast quarter of said Section number 25 above men- 81 tioned, and other lands for a distance of several miles up the Desplaines Eiver, which are outside of the meander line of the said Desplaines Eiver, and so pretending and claiming to be the owner of said premises has threatened to erect, and has act- ually begun the erection of a dam across the Desplaines Eiver, and across the 90 foot strip of land so reserved for the use of the Illi- nois and Michigan Canal, and across other lands outside of the meander line of the Desplaines Eiver, and to connect said dam with the bank or tow path of the Illinois and Michigan Canal, and to so construct said dam as to cause the water to be backed up and to overflow the lands belonging to the State of Illinois, and other lands for a long distance above said proposed dam, to wit, for the distance of ten miles, or thereabouts. That your Attorney General heretofore, on the 12th day of De- cember, A. D. 1907, caused to be served on said defendant, the Economy Light & Power Company, a certain notice and command in writing, notifying and commanding the said defendant, its of- ficers, agents, servants and representatives, to cease and desist from in any manner infringing upon, trespassing upon or inter- fering with the said lands owned by the State of Illinois, or in which the State of Illinois or the people of the State of Illinois have an easement for the benefit of the public, located in said Section 25 in Grundy County, Illinois, by the erection of a dam thereon, or 22 otherwise, and to cease and desist from in any way obstructing 32 the Desplaines Eiver or the Illinois Kiver in said section or elsewhere, and further notifying and commanding said defend- ant to remove any and all obstructions that it may have placed upon said premises, whether the same be in the bed of the Des- plaines Eiver or otherwise located; which notice and command in writing was served upon said defendant company by personal de- livery of the same to John F. Gilchrist, Secretary of said defendant company, who, on behalf of said defendant company then and there acknowledged service and receipt of the same; a copy of which no- tice and command, with said written receipt of service, as signed b}^ said secretary, appended, is hereto attached and marked Ex- hibit M. But now so it is, may it please your Honors, that said defendant has ignored said notice and command and disregarded the same, and since the service and receipt thereof has continued and i^ersisted in the work of constructing said dam at said place in the bed of said river, and has employed about one hundred men, with horses, wagons and machinery in so doing, and unless pre- vented by the injunction of this Honorable Court, will soon com- plete the same to the great impairment of said easement of navi- gation and to the great and irreparable injury of the people of the State of Illinois. That if the said dam is permitted to be erected by the defend- ant, it will destroy and interfere with the Desplaines Eiver as a navigable waterway for the use of the people of the State of 33 Illinois, and for all the people of the United States; that it will overflow and destroy the value of lands and the use of lands belonging to the State of Illinois adjacent to said Desplaines Eiver, and outside of the meander line of said river; that it will de- stroy the use of the 90 foot strip of land so to be retained for the use and benefit of the Illinois and Michigan Canal, and render the same inoperative and of purpresture impaired benefit to said canal ; that it will destroy a feeder of the Illinois and Michigan Canal and will constitute a purpresture and that the same will produce and work irreparable loss and damage to the Illinois and Michigan Canal, and to the State of Illinois, and to the rights of the people of the State of Illinois. 34 X. Your orators further show that said agreement Exhil)it A, purports to give authority and consent by the Canal Com- missioners unto the said Griswold and his assigns, to dam the Des- plaines Eiver, to back up water upon a ninety foot strip and cause the same to be flooded, to excavate in and remove portions of said Kankakee feeder therein mentioned and of the structures therefor, to attach the said proposed dam to the tow path of the canal, to di- vert water from the Desplaines Kiver, to attach and close up a levee to and along the tow path bank of said canal, to use the gravel and material the property of the state, to enter upon the canal lands and the canal itself in and about said works, and to raise, change and alter buildings owned by the state and used in connec- tion with said canal; as to each and every of which provisions the same were beyond the power of said Commissioners to grant. The said consent and permission, jmrported to be conferred by said instrument, was without limit of time, and of right should be held, in law and in equity, to be without any authority, and to con- fer no authority, and be against the public policy of the state and in derogation of the rights and interests of the people, and to be revocable by the state. That said lease. Exhibit B, purported to convey and demise in- terests in the said ninety foot strip within the area described in said lease, to which reference is here made, in that part of the 35 canal called the Kankakee feeder, and purported to give a first right of renewal to the party of the second part therein named, and purported to be made subject to said contract Exhibit A. That each of said instruments purported to contract, on the part of said Canal Commissioners, with said Griswold, his successors and as- signs, and by their terms might be assigned, one to one assignee and the other to another and different assignee. That said contracts were entered into by the parties thereto with the mutual knowledge and understanding that the party of the sec- ond part and his assignee thereof intended to make use of the same in erecting said dam and developing water power thereon, and that the same amount to a lease of water power rights and lands and lots- connected therewith. That the said lease and contract were not nor were either of them entered into upon notice by publication, nor limited to a period of ten years, contrary to the provision of a 24 certain Act entitled, '^An Act to revise the law in relation to the Illinois and Michigan Canal, and for the improvement of the Illi- nois and Little Wabash Eivers,’^ approved March 27th, 1874, and acts amendatory thereof, and, in particular, to the provisions of Clause 6 of Section 8 of said statute as amended by the certain Act amendatory thereof, approved June 19th, 1891, in force July 1st, 1891 ; and your orators charge that the same are beyond the power of said Commissioners to enter into, and are null and void. 36 Your orators further show that treating said instruments as leases of water power they are subject to the power of the state, by its lawfully authorized agents, to resume, without com- pensation to the party of the second part therein named, his suc- cessors or assigns, the use of such water power, and are further subject to the power of the state to abandon or destroy the work by the construction of which the water privilege therein purported to be conferred shall have been created, whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the state, — all in accordance with the provisions of said Clause 6 of said Section 8 of said Act approved March 27th, 1874, as amended by said Act approved June 19th, 1891. Your orators further show that the opinion of the Legislature that such work has ceased to be advantageous to the state was duly expressed by the said statute heretofore cited, approved and in force December 6th, 1907, entitled ‘‘An Act recognizing the Des- plaines and Illinois Eivers as navigable streams, and to prevent ob- structions being placed therein, and remove obstructions therein now existing.’’ That said contract. Exhibit C, purports to leave to the said Griswold, and his successors and assigns, such right as is now, at the date thereof, under the control of the Canal Commissioners, to divert the waters of the Kankakee Eiver into the Kankakee feeder, and discharge the same into the Desplaines Eiver, and to de- 37 stroy and reconstruct the dam across the Kankakee Eiver, and to construct at each end of said Kankakee feeder suitable gates for controlling the discharge of the Kankakee Eiver through said feeder, and to enter upon the Kankakee feeder for the purposes therein named. But your orators sliow that the said contract was a further lease for the purpose of enabling the assignee therein to develop and cre- ate water power, and was not made in conformity to the provisions of the statutes last cited in reference to the Illinois and Michigan Canal ; and further show that said Kankakee feeder was an in- tegral part of said canal, and that said agreement was beyond the power of said Commissioners to make. But your orators further show that said lease, Kxhibit C, con- tained the following provision, to wit : ‘Mt is herein further stipulated and agreed, and the Canal Commissioners hereby expressly reserve the right to cancel this lease and recover jiossession of the land, property and rights above demised and referred to, whenever, in tlie judg- ment of the Canal Commissioners, or other proper officers of the state, at such time having charge of canal property, they shall deem the interests of the state re(]uire it to repossess and use said property for state purposes.” And your orators show that said power of revocation and can- cellation may be exercised by the Legislature of the state, and that the same was exercised by the Legislature of the state by the enact- ment of the statute hereinbefore mentioned, which was approved and in force December 6th, 1907, entitled ^‘An Act recognizing 38 the Desplaines and Illinois Kivers as navigable streams, and to prevent obstructions being placed therein, and remove obstruc- tions therein now existing.” And your orators show that the exer- cise of the powers and privileges and rights purported to be con- ferred by said lease. Exhibit C, will constitute and create obstruc- tions of the Desplaines Eiver. That said deed Exhibit J purports to convey the lands therein described, and in terms to include lands lying and being situated outside of the meander line of the Desplaines Eiver, and purports to be subject to the terms of said flowage contract Exhibit A, and said lease Exhibit B, and to renew the covenants thereof by the certain provision in said deed referring thereto, which recites that the said deed is subject, however, to the terms, conditions and pro- visions of the flowage contract and lease made with said Harold F. Griswold, and bearing date September 2, A. D. 1904, which terms, conditions and provisions still remain in full force, and shall be fully kept and performed.” 2G And your orators show that the said lands and lots described in said deed are lands and lots connected with the water power privilesres sought and purported to be conferred and created by said contract Exhibit A, and said lease Exhibit B, and that said advertisement thereof did not so designate and describe said properties, and did not limit the same to the term of ten years prescribed by law, and the same are beyond the power of the said commissioners and are null and void, and are subject to 39 the power in the state to resume the same and to abandon and destroy the work by the construction of which water privileges shall have been created, whenever in the opinion of tile Legislature such work shall cease to be advantageous to the state; — and your orators show that the opinion of the Legisla- ture that the same ceased to he advantageous to the state was duly expressed by the said statute approved and in force Decem- ber 6, 1907, entitled, ^‘An Act recognizing the Desplaines and Illi- nois Divers as navigable streams, and to prevent obstructions be- ing placed therein, and remove obstructions therein now ex- isting.” Your orators further show that said Pole lease. Exhibit K, purported to convey to said Griswold, his successors and assigns, the right to maintain a line of poles along said canal from the west line of said Section 25, upon which said dam has been located, to Pobey street in the City of Joliet, and from the same point in said Section 25 to the west limits of the City of Morris in Grundy County. And your orators show that the said lease was made upon the same day as said contract and lease, Exliibit A and Exhibit B, and was also for the purpose of developing the said water power and transferring and conveying the same as electrical energy by said ])roposed line of poles, and was subject to all the infirmities here- tofore specifically alleged as to said contract and lease. Exhibit A and Exhibit B. And your orators further show that said contracts, deeds and leases were and each of them was entered into on inadecjuate con- sideration. 40 Forasmuch, therefore, as your orators is without remedy in the premises, excei>t in a court of ecpiity, and to the end 27 that the said Economy Light & Power Company, the defendant in this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oatli ])eing hereby waived, and that the said deeds, leases and contracts herein])efore mentioned and each of them may be set aside and be declared to be beyond the power of the said Canal Commissioners and null and void as to each and every part and in particular as to the bed of the Desplaines Piver, and as to the 90-foot strip of land • hereinbefore described, and as to the lands lying and being sit- uate outside of the meander line of the Desplaines Piver, and as to the said part of the canal designated as the Kankakee feeder, and that the said Economy Light & Power Company, its officers, agents and servants, and each and all and every of them, shall be restrained by the order and injunction of this Honorable Court from erecting a dam across said Desplaines Piver and across the premises hereinbefore mentioned, and from causing tlie waters of the Desplaines Piver to back up and overflow the lands of the State of Illinois, and to refrain from permitting the obstruction already placed in said Desplaines Piver to be and remain therein, and that your orator may have such other and further relief in the premises as equity may require and to your Honors shall seem meet. May it please your Honors to grant unto your orator the people’s writ of injunction to be directed to the Economy 41 Light & Power Company, restraining it and its officers, agents and servants, from erecting a dam across the Desplaines Piver and across the 90-foot strip of land and adjoining the water course of the Illinois and Michigan Canal on the site thereof next to the Desplaines Piver, and across the lands outside of the meander line of the Desplaines Piver, and from causing the water of the Desplaines Piver to be backed up and to overflow the lands belonging to the State of Illinois, and from permitting the ob- structions already placed in said Desplaines Piver and on said 90-foot strip of land and on said lands outside of the meander line of the Desplaines Piver by the Economy Light & Power Company, all located in and on the southeast quarter of Section No. 25 in Township No. 34 north, in Pange No. 8 east of the Third 28 Principal Meridian, in Grundy County, Illinois, to remain therein and thereon, until the further order of this court. I\ray it please your Honor to grant the writ of summons in chancery directed to the Sheriff of the County of Cook, command- ing him that he summon the Economy Light & Power Company to appear before the said court on the first day of the next March Term thereof to be held at the Court House in the City of Morris, in the County of Grundy aforesaid, and then and there to answer this bill. W. H. Stead, Attorney General. I\^ALTER Reeves, IMerritt Starr, Special Counsel. 42 State of Illinois, ) County OF Cook. ) Lyman E. Cooley, being first duly sworn, on his oath deposes and says that he is duly authorized by the Attorney of the State of Illinois to make affidavit in this behalf ; that he has heard read the foregoing bill and knows the contents thereof, and that the matters and things therein stated are true of his own knowledge except in so far as they are stated to be upon information and belief, and as to those matters he believes it to be true. Lyman E. Cooley. Subscribed and sworn to before me this 28th day of Decem- ber, A. D. 1907. Arthur A. Bliss, Notary Public. 43 Exhibit A. This Agreement, made and entered into this 2nd day of Sep- tember, A. D. 1904, by and between The Canal Commissioners of the State of Illinois, party of the first part, and Harold F. Gris- wold, of the City of Evanston, County of Cook and State of Illi- nois, his successors and assigns, party of the second part, wit- nesseth : 29 Whereas, said party of the second part claims to l)e a riparian owner along certain streams of water called the Desplaines Elver and Illinois Eiver, in the Counties of Grundy and Will, in the State of Illinois, and as such riparian owner is about to improve said Desplaines Eiver by the construction of a dam and other works across the mouth of said river in the County of Grundy and State of Illinois, with a crest of such height that the pool formed thereby will be on a level with the waters of Lake Joliet (a portion of said Desplaines Eiver in Will County, Illinois) and is about to improve said Illinois Elver by deepening the channel of said river in Section twenty-five (25), Township thirty-four (34) North, Eange VIII East of the Third P. M., and Whereas, the State of Illinois is a riparian owner at different points on the Desplaines and Illinois Eivers within the territory covered by this contract, as well as the owner of the hereinafter described parcels of land, under the control of the Canal Commis- sioners, and which are not connected with water power upon the Illinois and Michigan Canal, which said riparian rights and 44 said land have never produced a revenue, and said lands are now unproductive of revenue, swampy, unfit for cultivation, and partially covered with water, and said lands are so situated that the riparian rights appurtenant thereto cannot be made avail- able by the State to create water power, and Whereas, said party of the second part is desirous of obtain- ing the right to use, overflow and damage (in such manner as will not interfere with navigation on the Illinois and Michigan Canal), so much of the said property as may be necessary in the construction of said dam and other works in the improvement of said Desplaines Eiver and in the deepening of the channel of said Illinois Eiver, Therefore, in consideration of the premises and the sum of Two Thousand Two Hundred Dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowl- edged, it is agreed as follows: 1st. That said party of the first part consents that said party of the second part shall have the right and authority in so im- proving the Desplaines Eiver, to construct a dam and other works across the Desplaines or Illinois Eiver at a point near the con- 30 fluence of the Desplaines and Kankakee Eivers, in the County of Grundy and State of Illinois, with a crest at an elevation of not to exceed minus seventy- three and two-tenths (73.2) Chicago 45 city datum, but in no event shall the back water caused by said dam extend beyond the northerly limits of ^‘Lake Joliet” (said ‘^Lake Joliet” being a wide portion of the Des- plaines Eiver about six miles in length and Ijdng south of the City of Joliet in the County of Will and State of Illinois) and further consents that said party of the second part may excavate in and deepen the channel of the Illinois Eiver in Section 25, Township 34 North, Eange VIII East of the 3rd P. M. 2nd. That said party of the second part shall have the right and authority to flow the ninety-foot reserve strip of the Illinois and Michigan Canal in Section 25 and 36, Township 34, North, Eange VIII, Grundy County, Illinois, and in Section 31, 30, 29 and 20, Township 34 North, Eange IX, Will County, Illinois, up to the canal bank; also so much of the north fraction of Section 31, Township 34 North, Eange IX East of the 3rd P. M. as lies south of the ninety-foot reserve strip along the towpath side of the Illinois and Michigan Canal, where the same may be over- flowed by reason of the construction of said dam and other works with the crest hereinbefore specified, together with the right to flow the water up against the towpath bank of the Illinois and ]\[ichigan Canal in said sections Provided the towpath shall be protected and preserved as hereinafter provided. 3rd. That said party of the second part shall have the right 46 to excavate in, and remove so much of the Kankakee Feeder (an abandoned feed of the Illinois and Michigan Canal) ly- ing north of the Desplaines Eiver, and south of the ninety-foot strip in Section 21, Township 34 North, Eange IX, Will County, Illinois, as may be necessary to discharge the waters of the Des- plaines Eiver through said Section 31 in a proper manner, and shall also have the privilege of removing the old aqueduct piers in said section. 4th. That said party of the second part shall have the right to erect, attach, repair and maintain, said dam and other works or structure up against the towpath bank of the Illinois and Mich- igan Canal in Section 25, Township 34 North, Eange VIII East :n. of the 3rd P. M., Grundy County, Illinois, but not so as to inter- fere in any manner with the use of said towpath in connection with said canal. 5th. That said party of the second part shall have the right to turn and divert from the Desplaines liiver into the Kankakee Piver a certain stream of water called the ^G<^ankakee Cutoff,” through, over and across said Kankakee Feeder and the ninety- foot strip on each side of said feeder in Section 5, Township 33, North, Eange IX East of the 3rd P. M., and said party of the sec- ond part is granted the right to construct on the hanks of said feeder controlling gates for flood protection from said Kankakee Piver. 6th. It shall he the duty of said party of the second part, subject to the direction of the Canal Commissioners, or 47 other officer or agent as hereinafter indicated, to raise the towpath or bank of the Illinois and Michigan Canal from its present height not less than two feet and to any additional height that may be necessary to prevent overflow and to perpetually thereafter maintain the same in good condition. The raising of said towpath shall extend from the point in said Grundy County where the dam or other structure of said party of the second part intercept said towpath bank to lock Number Seven in Sec- tion 17, Township 34 North, Pange IX East of the 3rd P. M., and when raised the width of the top of the towpath bank shall con- form to the width of the towpath as it exists at the present time. 7th. Permission and authority is hereby given said party of the second part to attach and close a levee to the towpath bank of the Illinois ’and Michigan Canal at the point in said towpath bank where the east and west half section line of Section 20, Township 34 North, Range IX East of the 3rd P. M., inter- cepts said towpath bank; and further permission is also given to construct levees on the east and west banks of the DuPage River from the dam across said river to the north line of Section 20, Township 34 North, Range IX East of the 3rd P. M., and attach and close said levees to the west and east sides respectively of said dam across the DuPage River in Section 17, Township 34 North, Eange IX East of the 3rd P. M., as indicated more 18 clearly by the blue print hereto attached and made a part of this contract as ‘‘Exhibit A.” Sth. Permission is hereby given said party of the second part to use so much of the gravel or other material lying along said Illinois and Michigan Canal, the property of the State of Illinois, as may he necessary to raise said towpath bank of said Illinois and Michigan Canal. Such material, however, to be taken out from places indicated or approved by the General Superintendent of the Canal, or other officer or agent designated by the Canal Commissioners or other officers in charge. 9th. That the said party of the second part is hereby author- ized to enter upon the lands or premises of the State of Illinois, part and parcel of the Illinois and Michigan Canal and to enter upon said canal itself in a manner and to the extent that shall be necessary to raise and maintain the towpath as above provided, and to attach and build said dam or other works onto said tow- path bank as herein ]Drovided, and to repair, maintain or renew the same as shall become necessary to the preservation thereof. 10th. It is herein further stipulated and agreed by and between the said parties hereto that said party of the second part shall raise the buildings owned by the State of Illinois in Section 31, Township 34 North, Eange IX East of the 3rd P. M., and used in connection with the Illinois and Michigan Canal, to a level 49 with the towpath of said canal when the same is raised, as provided in Paragraph 6 hereof. Said party of the second part will also provide two acres of land to be used by said party of the first part in connection with said buildings as a garden. The raising of said buildings and the providing of said land shall be to the satisfaction of the General Suj)erintendent or other officer or agent in charge of said canal. 11th. It is herein further stipulated and agreed by and be- tween the parties hereto that all work hereinbefore provided for, or which shall affect the canal property or interests, shall be done under the supervision of, and to the satisfaction of the Canal Commissioners or their duly authorized agent or agents, and not otherwise; and such work when so completed shall at all limes be kept and maintained by said party of the second part 33 under tlie like supervision and to the approval of said the Canal Commissioners, or their officers or agent duly authorized to rep- resent them. 12th. It is herein further stipulated and agreed by and between the parties hereto that the cost of inspecting the work herein provided for to be inspected by said party of the first part shall be paid by said party of the second part. 13th. It is herein further stipulated and agreed l)y and between the parties hereto that said party of the second part shall be responsible for and pay any and all damages that may be sus- tained by the State of Illinois, or the Canal Commissioners, 50 or the canal property, or the persons or property using said Illinois and Michigan Canal, or that shall be occasioned by the construction of the works hereinbefore contemplated to he done or made by said party of the second part, or in the subse- quent repair or maintenance thereof, or which shall be occasioned by the use of the dam, levees, or other works above provided for. This Agreement shall be binding upon and inure to the bene- fit of the respective successors and assigns of the parties hereto. In witness whereof, the said party of the first part has caused these presents to be signed by its president, and its corporate seal to be hereto affixed and duly attested, and said party of the second part has hereunto set his hand and seal the day and year first above written. The Canal Commissioners, C. E. Snively, President. Attest : W. R. Newton, Secretary. (Seal) Harold F. Griswold. 34 51 Exhibit B. This indenture, made this 2nd day of September, A. D., 1904, between the Canal Commissioners of the State of Illinois, party of the first part, and Harold F. Griswold, of the City of Evans- ton, County of Cook and State of Illinois, his successors and as- signs, party of the second part, witnesseth: That the said party of the first part, in consideration of the covenants of the said party of the second part, hereinafter set forth, does by these presents lease to the said party of the second part the following described property, to wit: The ninety-foot strip along the towpath side and outside of the towpath of the Illinois and Michigan Canal in Section 25 and 36, Township 34 North, Range VIII East of the 3rd P. M., Grundy County, Illinois, and said ninety-foot strip in Section 31, 30, 29 and 20, Township 34 North, Range IX East of the 3rd P. M., Will County, Illinois. (Also that part of the North half of Section 31, lying south of the ninety-foot reserve strip along the towpath side of said Canal.) Also that part of the Kankakee Feeder and the 90-foot strip on each side of said Feeder in Section 31, Town- ship 34 North, Range IX East of the 3rd P. M. and in Section V, Township 33 North, Range IX East of the 3rd P. M., Will County, Illinois. To have and to hold the same to the said party of the second port from the 2nd day of September, A. D. 1904, to the second day of September, A. 1). 1924, subject to a contract dated 52 the 2nd day of September, A. I). 1904, to said Harold F. Gris- wold, affecting said premises. And the said party of the second part, in consideration of the leasing the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part as rent for the same the sum of $500.00 in full for the term of this lease, the receipt of which $500.00 is hereby acknowledged. And it is further covenanted and agreed between the parties aforesaid that said party of the second part is hereby charged vlth knowledge of all of the provisions contained in said con- ti'aet with Harold F. Griswold, in so far as they affect the prem- ises hereby leased. It is further understood and agreed by and between the par- ties hereto that in case said party of the first part shall deter- mine to re-lease the land hereby demised at tlie expiration of this lease that then and in such event the said party of the second part shall have the first right to re-lease the same by paying therefor as much as shall be offered by any other person or party there- for, provided, however, that such rental may at the option of said party of the first part be ascertained, determined and fixed by three appraisers, one to be chosen by each of the parties here- to and the third by the two thus chosen, but in no event shall the rent be less than the amount fixed in this lease; and said 53 party of the second part hereby covenants and agrees that he will, and hereby offers to pay the same rental as herein agreed to be paid for another term of twenty years', to begin at the expiration of the term hereby granted. It is further understood and agreed that in case said party of the second part shall desire to re-rent said property for a further term of twenty years at a rental to be agreed upon by the parties hereto or fixed b}^ a])praisers as aforesaid, he shall notify said party of the first part in writing of such desire at least one year before the expiration of the term hereby demised. The covenants herein shall extend to and be binding upon ihe heirs, executors, administrators, successors and assigns of the parties to this lease. In witness whereof, the party of the first part has caused this instrument to be signed by its President and attested by its Sec- retary, and duly authorized its corporate seal to be hereunto at- tached, and said party of the second part has hereunto set his hand and seal the day and year first above written. The Caxal Commissionees By C. E. S NIVEL Y, President. Attest : W. B. Newton^ Secretary. (Seal) Harold F. Griswold. 36 54 Exhibit C. This indenture, made this 8th day of August, A. D. 1905, be- tween the Canal Commissioners of the State of Illinois, party of the first part, and Harold F. Griswold, of the City of Evanston, County of Cook and State of Illinois, his successors and assigns, party of the second part, witnesseth: Yvhereas, said party of the second part, has made application to the Canal Commissioners of the State of Illinois to lease the right of the State to divert the waters of the Kankakee River into the Kankakee Feeder and discharge the same into the Des- plaines River, in Section 31, Township 34, North, Range 9, East of the Third Principal Meridian; and also the right of the State to reconstruct the dam, the property of the State of Illinois, across the Kankakee River, in Section 9, Township 33, North, Range 9, East of the Third Principal Meridian, and the right of the State to repair the banks of said Kankakee Feeder and to construct at each end of said Feeder suitable gates for controlling the discharge of said waters through said Feeder; and Whereas, The Atchison, Topeka & Santa Fe Railway Co., and the Chicago & Alton Railway Co., have made separate fills or em- bankments across said Feeder in Section 9, Township 33 North, Range 9 East of the Third Principal Meridian, with permission of the Canal Commissioners, and are now using the same as a part of their respective road-beds across said feeder; Therefore, in consideration of the premises and the cov- 55 enants and agreements of said party of the second part, here- inafter following, the application of said party of the second part is hereby granted, and the said party of the first part, by these presents, doth lease to said party of the second part the rights of the State now within the control of the Canal Commis- sioners, to-wit: such right as is now under the control of the Canal Commissioners to divert the waters of the Kankakee River info the Kankakee Feeder and discharge the same into the Des- plaines River, in Section 31, Township 34 North, Range 9 East of the Third Principal Meridian, together with such light of the State as is now under the control of the Canal Commissioners to restore 87 and re-construct the dam across the Kankakee River, in Section 9, Township 33 North, Range 9, East of the 3rd Principal Meridian, hut in such restoration the crest of such dam shall not be higher than it has heretofore been; also such right of the State as is within the control of the Canal Commissioners to construct at' each end of said Kankakee Feeder suitable gates for controlling the discharge of the waters of said Kankakee River through said Feeder; and such right as the Canal Commissioners now have to enter upon the Kankakee Feeder and the dam in connec- tion therewith, for the purpose of repairing the banks of said Feeder or repairing the dam across said Kankakee River or the gates at each end of said Feeder; to have and to hold the same for the full period of twenty (20) years from the date hereof, 56 subject however to whatever legal rights said railway com- panies respectively have to cross said Feeder upon such em- bankments and otherwise, also subject to the provisions of cer- tain leases heretofore made to Harold F. Griswold of the City of Evanston, and Charles A. Munroe, of the City of Chicago, both of the County of Cook and State of Illinois. And the said party of the second part further agrees to pay to the said party of the first part, as the consideration for the rights hereinabove described, the sum of one hundred and fifty dollars ($150.00) per year for each and every year of the term hereby de- mised, payable on the 10th day of August, A. H. 1905, and on the 10th day of August in each and every year of said term here- by demised. And it is further provided that said party of the second part shall have the right to cancel this lease at any time at his option after five (5) years from the date hereof. It is herein further stipulated and agreed by and between the said lessor and lessee as a part of the consideration of thi^? lease, that at the expiration of this lease, or in case of the earlier termination thereof under its provisions, or in accordance with the law, that said lessee, the party of the second part, shall restore the said dam and feeder, to its present condition, and restore the flowage of all water to its present channel at his own and sole 57 expense, unless he shall be directed not to do so by written notice from said party of the first part or other officers or :]8 officer at sucli time having' charge of said Illinois and Michigan Canal; and in case of failure on the part of said lessee so to do, the said party of the first part, or other officers or officer, in charge of said canal, shall have the right to so restore said dam, feeder and water to its present condition at the expense of said party of the second part; and said party of the second part, for him- self, his heirs, executors, administrators and assigns, hereby covenants and agrees to and with said party of the first part and the officer or officers at such time in charge of said canal, and the State of Illinois, that he will refund and pay to them or it the full cost of the restoration of such dam, feeder and water to its ])resent condition and place, within thirty (30) days after he or they shall be presented with a statement of such cost and ex- pense. It is herein further exj^ressly stipulated and agreed by and be- tween the parties hereto, and said party of the second part hereby, for himself, his heirs, executors, administrators and assigns, cove- nants and agrees to and with said party of the first part, the officer or officers in charge of the Illinois and Michigan Canal, and the State of Illinois, that he, and they, will fully and completely protect, save and keep harmless, the said party of the first part, such officer or officers, and said State of Illinois-, from any and 58 all damages and claim for damages, which may be made against such officers or said state by reason of, or growing out of any work which said party of the second part, his heirs, exe- cutors, administrators or assigns shall or may do, or shall attempt to do under and by virtue of this instrument or any of the rights granted or attempted to be granted hereby, whether by the flowage of land, back water, change of present channel or flowage of water or otherwise, whether of the kind or character herein enumerated or different or otherwise, including any and all costs, expenses and attorney’s fees which shall or may grow out of, or be incurred in connection with any and all such claims made or asserted, or suits brought in reference thereto; and said party of the second l)art, his heirs, executors, administrators and assigns, likewise, as further and additional security and protection against loss or claims, further covenants and agrees that, he and they, will, before I 31 ) any work shall be commenced uncTer this contract, duly execute, acknowledge and deliver to said party of the first part a bond of indemnity in such form and for such an amount as they, the said party of the first part, shall determine and specify and shall be adequate to fully and completely protect said party, of the first part, said officer or officers and said State of Illinois against any and all damages, loss, cost, expense and attorney’s fees which shall be made, claimed, or be incurred or grow out of any 59 and all things done or attempted to be done by said party of the second part, his heirs, executors, administrators or assigns, under or by virtue of this instrument; and in case said party of the second part, his heirs, executors, administrators or assigns, or any of them, shall fail or refuse to duly execute and deliver such bond, within thirty (30) days after written request therefor shall be served upon him or any of them, then, and in such event, all rights granted under this instrument shall at once cease and determine, and shall at once revert to and re-vest in said party of the first part and the State of Illinois. It is herein further provided that this lease may be extended for a further period of twenty years at a rent to be fixed by an appraisal, to be made by three disinterested appraisers, to be ap- pointed by the Governor and the rent fixed by such appraisal shall be subject to the approval of the Canal Commissioners or other proper officers of the state at such time having charge of the Canal property. It is herein further stipulated and agreed, and the Canal Com- missioners hereby expressly reserve the right to cancel this lease and recover possession of the land, property and rights above demised and referred to whenever in the judgment of the Canal Commissioners, or other proper officers of the state at such time having charge of canal property, they shall deem the interests of the state require it to repossess and use said property for state purposes. 60 In witness whekeof, the party of the first part has caused this instrument to be signed by its president, and attested by its secretary and duly authorized its corporate seal to be at- 40 tached, and said party of the second part has hereunto set his hand and seal the day and year first above written. The Canal Commissionees^, By C. E. S NIVEL Y, • President. Attest: W. E. Newton, Secretary. (Seal) Haeold F. Geiswold. Attest : Lauea Schumachee. State of Illinois, County of Cook. I, Car] A. Eoss, a Notary Public, in and for said County in the State aforesaid, do hereby certify that Harold F. Griswold, per- sonally known to me to be the same person whose name is sub- scribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed and de- 61 livered the said instrument as his free and voluntary act for the uses and purposes therein set forth. Given under my hand and notarial seal, this 10th day of August, A. D. 1905. Gael A. Eoss, Notary Public. 62 EXHIBIT D. Office of The Canal Commissioners, Lockport, Ilk, June 11, 1904. To the Honorable Eichard Yates, Governor of the State of Illinois, Springfield, Illinois. Dear Sir: — The undersigned Canal Commissioners recommend that the in- terest of the State of Illinois in and to the parcel or tract of land liereinafter specifically described, being part of the canal lands or lots of the State of Illinois other than those connected with water 41 power upon the said canal and the ninety foot strip along the canal : A tract or parcel of land in Section Thirty-one (31), Township Thirty-four (34) North of Eange Nine (9) East of the Third (3rd) Principal Meridian, which lies north of the center of the Desplaines River and south of the Ninety Foot reserve line of the Illinois and Michigan Canal, in the County of MTll and State of Illinois, Should be sold, as in our judgment the interest of the State will he promoted thereby; and The Canal Commissioners request the approval of your Excel- lency to the sale thereof at public auction to the highest and best bidder for cash at the Canal Office in Lockport, Illinois, on the Second (2nd) day of August, 1904, at Ten o’clock in the morning, thirty (30) days previous notice of said sale being first given 63 in some newspaper published in the County of IVill where such tract or parcel of land is situated. Signed C. E. Snively, President. Signed AY. R. Newtox, Secretary. Signed AA^. L. Sackett, Treasurer. The Canal Commissioners of the State of Illinois. 64 EXHIBIT E. I hereby approve of the sale of the tract or parcel of land described in the foregoing report of The Canal Commissioners at public auction to the highest and best bidder for cash at the Canal Office at Lockport, County of AYill and State of Illinois, on the Second (2nd) day of August, 1904, at Ten 0 ’Clock in the morn- ing, thirty (30) days previous notice of said sale being first given by The Canal Commissioners in some newspaper published in the County of AYill where such tract or parcel of land is situated. Done at Springfield this 14th day of June, 1904. Rich. Yates, Governor of State of Illinois. 42 65 EXHIBIT F. State of Illinois, l Will County. f The Will County Printing Company (incorporated) does here- by certify that it is the publisher of the Lockport Phoenix-Ad- vertiser, a weekly newspaper of general circulation, printed and published in the Village of Lockport, in said County, and that the advertisement or notice hereto annexed relating to the matter of sale of canal lands has been published in said paper, in every copy and impression thereof, once each week, for three weeks con- secutively of the issues commencing June 16th, A. 1). 1904, and ending June 30th, A. D. 1904, which are the dates of the first and last papers containing the same. Given under the corporate seal of the Will County Printing Company, this 17th day of December, A. D. 1907. The Will County Peinting Co., Inc., Per T. A. Cheadle, (Seal) Secy. S Treas. Subscribed and sworn to before me by T. A. Cheadle, this 17th day of December, 1907. William W. Noeth, (Seal) Notary Public. 66 Copy of Notice Herein Eef erred to: SALE OF CANAL LANDS. Office of the Illinois and Michigan Canal, Lockport, Illinois, June 15th, 1904. Pursuant to the statute of the State of Illinois, the interest of the State of Illinois in the following described parcels or tracts of land, will be sold at public auction to the highest and best bidder for cash at the Canal Office in Lockport, County of Will and State of Illinois, on the second (2nd) day of August, 1904, at ten o’clock in the morning, in full conformity with “An act to amend section eight (8) of Lin act to revise the laws in relation to the ■V] Illinois and Little Wabasli Rivers’, approved March 27, 1874, in force July 1st, 1874, as amended by an act of June 19, 1891, in force July 1, 1891,” approved April 21, 1899, in force July 1, 1899; sit- uated in the County of A¥ill and State of Illinois, to-wit : A tract or parcel of land in section thirty-one (31), township thirty-four (34) north, of range nine (9) east of the third (3rd) principal meridian, which lies north of the center of the Desplaines river and south of the ninety-foot reserve line of the Illinois 67 and Michigan Canal, in the County of AVill and State of Illi- nois. The Canal Commissioners reserve the right to reject any and all bids. C. E. Sniveuy, President. AV. R. Newton, Secretary. AV. L. Sackett, Treasurer. The Canal Commissioners of the State of Illinois. June 16-23 and 30, ’04. 68 EXHIBIT G. Lockport, Illinois, November 1, 1904. To The Honorable Richard Yates, Governor of the State of Illinois, Springfield, Illinois. Dear Sir : — The undersigned Canal Commissioners recommend that the in- terest of the State of Illinois in and to the parcel or tract of land hereinafter specifically described, being part of the canal lands or lots of the State of Illinois other than those connected with water power upon the said canal and the ninety-foot strip along the canal: That part of Section Thirty-one (31), Township Thirty-four (34) North, Range Nine (9) East of the Third (3rd) P. M., AVill County, Illinois, lying southwest and southeast of the Illinois and Michigan Canal and Northeast and Northwest of the Desplaines River (excepting and reserving the ninety-foot strip of the Illi- nois and Michigan Canal) snhject to the right of flowage and lease of Harold F. Griswold), should be sold, as in our judgment the interests of the State will be promoted thereby; and The Canal Commissioners request the approval of your Excel- lency to the sale thereof at public auction to the highest and best bidder for cash at the Canal Office in Lockport, Illinois, on the 6th day of December, 1904, at ten o’clock in the morning, 69 thirty (30) days previous notice of said sale being first given in some newspaper published in the County of Will, where such parcel or tract of land is situated. C. E. Snively, President. W. E. Newton, Secretary. W. L. Sackett, Treasurer. The Canal Commissioners of the State of Illinois. 70 EXHIBIT H. I hereby approve of the sale of the parcel or tract of land described in the foregoing report of the Canal Commissioners at public auction to the highest and best bidder for cash at the Canal Office at Lockport, County of Will and State of Illinois, on the 6th day of December, 1904, at ten o’clock in the morn- ing, thirty (30) days previous notice of said sale being first given by The Canal Commissioners in some newspaper published in the County of Will where such parcel or tract of land is situated. Done at Springfield this 2nd day of November, 1904. Eich. Yates, Governor of the State of Illinois. 71 EXHIBIT I. State of Illinois, } Will County. f The Will County Printing Company (incorporated) does here- by certify that it is the publisher of the Lockport Phoenix-Ad- vertiser, a weekly newspaper of general circulation, printed and published in the Village of Lockport, in said County, and that the advertisement or notice hereto annexed relating to the mat- ter of sale of Canal Lands has been published in said paper, in every copy and impression thereof, once each week, for three weeks consecutively of the issues commencing November Mrd, A. D. 1904, and ending November 17th, A. D. 1904, which are the dates of the first and last papers containing the same. Given under the corporate seal of the Will County Printing Company this 17th day of December, A. D. 1907. The Will County Pkinttng Co., Inc. Per T. A. Cheadle, (Seal) Secy. & Treas. Subscribed and sworn to before me by T. A. Cheadle, this 17th day of December, 1907. William W. North, (Seal) ^ Notary Public. 72 COPY OF NOTICE HEREIN REFERRED TO. Office of the Illinois and Michigan Canal. Lockport, Illinois, November 3rd, 1904. Pursuant to the statute of the State of Illinois, the interest of the State of Illinois in the following described parcel or tract of land will be sold at public auction to the highest and best bidder for cash at the Canal Office in Lockport, County of Will and State of Illinois, on the 6th day of December, 1904, at ten o’clock in the morning, in full conformity with ^‘an act to amend section eight (8) of ‘an act to revise the law in relation to the Illinois & Mich- igan Canal and for the improvement of the Illinois and Little Wabash Rivers’, approved Alarch 27, 1874, in force July 1, 1874,” approved April ^1, 1899, in force July 1, 1899; situated in the County of Will and State of Illinois, towit : That part of section thirty-one. Township thirty-four (34) North, Range nine (9) East of the Third (3rd) P. M., Will County, Illinois, lying southwest and southeast of the Illinois and Michigan Canal and northeast and northwest of the Desplaines River (ex- 46 cepting and reserving tlie ninety-foot strip of the Illinois and Michigan Canal) subject to the right of flowage and lease of 73 Harold F. Griswold. The Canal Commissioners reserve the right to reject any and all bids. Nov. 3-10-17- ’04. C. E. Snively, President. W. R. Newton, Secretary. W. L. Sackett, Treasurer. 74 EXHIBIT J. ILLINOIS AND MICHIGAN CANAL. Know all men by these presents, that the Canal Commission- ers of the State of Illinois, under the authority vested in them, by the act of the Legislature of the State of Illinois, entitled ‘L\n act to revise the law in relation to the Illinois and Michigan Canal, and for the improvement of the Illinois and Little Wabash Riv- ers”. Approved March 27th, 1874, in force July 1st, 1874; as amended June 19th, 1891, in force July 1st, 1891 ; amended April 21st, 1899, in force July 1st, 1899, in consideration of five hundred dollars ($500), the receipt whereof is hereby acknowledged, do hereby convey and quit-claim unto Harold F. Griswold, the fol- lowing described parcel or tract of land, towit: That part of section thirty-one (31), Towmship thirty-four (34) North, Range nine (9) East of the Third Principal Meridian, AYill County, Illinois, lying southwest and southeast of the Illinois and Michigan Canal and northeast and northwest of the Deplaines River, (excepting and reserving a strip of land ninety (90) feet in wudth on the southerly side of the Illinois and Michigan Canal and bordering thereupon, and continuous throughout the said sec- tion thirty-one (31), Township thirty-four (34) North, Range nine (9) East of the Third Principal Meridian. 47 Subject however, to the terms, conditions and provisions of the flowage contract and lease made with said Harold F. Gris- 75 wold and hearing date September second (2nd) A. D. 1904, which terms, conditions and provisions still remain in full force and shall he fully kept and performed. DUPLICATE. To HAVE AND TO HOLD tlie Same, together with all the rights, priv- ileges, immunities and appurtenances thereunto belonging unto said Harold F. Griswold, his heirs and assigns forever. In witness whereof, the said Canal Commissioners of the State of Illinois, have caused their official seal to he affixed hereunto by their secretary and their official names subscribed hereto by their president, this sixth day of January, A. 1). 1905. The Canal Commissioners of the State of Illinois, By C. E. S NIVEL Y, President. Attest : W. R. Newton, Secretary. 76 EXHIBIT K.' ‘‘Memorandum of agreement made and entered into between the Canal Commissioners of the State of Illinois, party of the first part, and Harold F. Griswold, of the City of Evanston, County of Cook and State of Illinois, his successors and assigns, party of the second part, witnesseth: “That the Canal Commissioners, in considertaion of the cove- nants and agreements hereinafter set forth, to be kept and per- formed by the said party of the second part, hereby grants to said party of the- second part, the right to place and thereafter maintain a line of poles along and upon the land belonging to the State of Illinois, part and parcel of the Illinois and Michigan Canal lands, to he located as hereinafter designated, between the west line of Section 25, Township 34, North, Range 8, Grundy County, Illinois, and Roby street in the City of Joliet, Will County, Illinois; and between the west line of Section 25, Township 34, 48 North, Eange 8, Grnmdy County, Illinois, and the west limits of the City of Morris, in the County of Grundy and State of Illi- nois. Said line of poles and wires are to be located and built side of the said Canal, and under the di- rection and supervision of said Canal, or the officer having charge and supervision of the said Canal ; provided that where, in the judgment of said superintendent, or officers, the topography 77 of the ground makes it necessary or expedient to have said poles upon the towpath bank of said canal, authority is here- by given to said party of the second part to cross said canal and place poles along the said towpath bank. The necessity or expedi- ency thereof, the place and manner of crossing and placing said poles along said towpath bank to be subject to the approval, and under the direction and supervision of said superintendent, or officer. It is distinctly understood, however, that the aforesaid line of poles shall not, in any event, be located, or maintained in said place, or manner as to interfere with the use or operation of the said canal. ‘‘To have and to hold said privilege to the party of the second part, his successors and assigns, until the 2nd day of September, A. D. 1924; provided that the Canal Commissioners reserve the right to at any time require any change to be made in the location of said line of poles, subject, however, to any pole line rights now existing, and the right to grant other pole line rights is hereby expressly reserved by the said party of the- first part. “In consideration of the above, the said party of the second part, for himself, his successors and assigns, covenants and agrees to pay to the Canal Commissioners the sum of $750 for said right between the said west line of section 25, Township 34, North, Eange 8, Grundy County, Illinois, and Eoby street, 78 in the City of Joliet, Will County, Illinois, and the sum of $250 for said right between the west line of said Section 25 and the west line of the City of Morris, in said Grundy County, Illinois, the receipt of which $750 and said $250 is hereby acknowl- edged. “It is hereby further stipulated and agreed that said poles shall be used for the sole and only purpose of stringing thereon the wires of the said party of the second part to carry electricity from and generated at the proposed plant of the said party of the second part, in Section 25, Towns! lip 34, North, Range 8, Grundy County. Illinois. ‘‘The said party of the second part further covenants and agrees that it will construct and maintain said pole line and wires in a good and workmanlike manner, and will so maintain and operate the same as not to interfere with business along said canal, or the business or property of other persons, or corporations, and also assume all lial3ility for all deaths or personal injuries, or in- jury to property, or others, which may occur by reason of the con- struction, or operation of said pole lines, and that it will forever indemnify and save harmless the Canal Commissioners of the State of Illinois from and against all claims or liabilities for or by reason of any damage, the risk of which is hereby assumed by the party of the second part; and also from and against 79 all claims, liabilities or judgments on account of any death or injury, or damage to personal property, all liability for which is assumed by the party of the second part, and the party of the second part agrees to pay all charges and expenses that may be incurred, or any judgments that may he rendered by reason thereof. “In witness whereof, the said party of the first part have caused this instrument to he signed by the president and attested by its secretary and has duly authorized its corporate seal to he hereunto attached; and said party of the second part has hereunto set his hand and seal this 2nd day of September, A. D. 1904. “The Canal Commissioners, “By C. E. Snively, President. (Seal) “Harold F. Griswold. “Attest: “W. R. Newton, Secretary.’^ 50 80 EXHIBIT L. Resolved, by the Senate, the House of Representatives concur- ring herein. That there shall be submitted to the electors of this State at the next election of members of the General Assembly, a proposition to amend the constitution of this State, to-wit: Resolved, That the separate action of the Constitution of this State relating to the canal be amended to read as follows: The Illinois and Michigan canal, or other canal or waterway, owned by the State shall never be sold or leased until the specific proposition for the sale or lease thereof shall first have been submitted to a vote of the people of the State at a general election, and have been approved by a majority of all the votes cast at such election. The General Assembly shall never loan the credit of the State or make appropriations from the treasury thereof, in aid of railroads- or canals ; Provided, That any surplus earnings of any canal, waterway or water power may be appropriated or pledged for its enlarge- ment, maintenance or extension; and, Provided, further. That the General Assembly may, by suitable legislation, provide for the construction of a deep waterway or canal from the present water power plant of the Sanitary Drain- age District of Chicago, at or near Lockport, in the township of Lockport, in the county of Will, to a point in the Illinois river at or near Utica, which may be practical for a general j)lan 81 and scheme of deep waterway along a route, which may be deemed most advantageous for such plan of deep waterway; and for the erection, equipment and maintenance of power plants, locks, bridges, dams and appliances sufficient and suitable for the development and utilization of the water power thereof; and authorize the issue, from time to time, of bonds of this state in a total amount not to exceed twenty million dollars, which shall draw interest, payable semi-annually, at a rate not to exceed four per cent per annum, the proceeds whereof may be applied as the Gen- eral Assembly may provide, in the construction of said waterway and in the erection, equipment and maintenance of said power plants, locks, bridges, dams and appliances. All power developed from said waterway may be leased in 51 part or in whole, as the General Assembly may by law provide ; but in the event of any lease being so executed, the rental specified therein for water power shall be subject to a revaluation each ten years of the term created, and the income therefrom shall be paid into the treasury of the State. Concurred in by the House October 16, 1907, by a two-thirds vote. % 82 EXHIBIT M. To the Economy Light and Power Company : I, W. H. Stead, as Attorney-General of the State of Illinois, by virtue of the authoritj" vested in me by law do hereby notify and command you, and your officers, agents, servants, and rep* resentatives, to cease and desist from in any manner infringing upon, trespassing upon or interfering with the lands owned by the State of Illinois or in which the State of Illinois or the People of the State of Illinois have an easement for the benefit of the ^public, and located in Section Number Twenty-five (25), in Town- ship Number Thirty-four (34) North, in Eange Number eight (8) East of the Third Principal Meridian, in Grundy County, Illinois, by the erection of a dam thereon or otherwise, and to cease and desist from in any way obstructing the Des Plaines River or Illi- nois River in said section or elsewhere. And you are further notified and commanded to remove any and all obstructions that you may have placed upon said prenn ises, whether the same be in the bed of the Des Plaines River or otherwise located. Dated this 12th day of December, A. D. 1907. W. H. Stead, Attorney-General of the State of Illinois. Received a copy of the foregoing notice this 12th of Deceim her, A. D. 1907. The Economy Light and Power Company, By John F. Gilchrist, Secy. 52 (Abstract of bill) 3 I. Suit brought by the People of the State of Illinois by their Attorney General against the Economy Light and Power Company, a corporation. Ordinance of 1787. II. Charges that in the early history of our country terri- tory embracing what is now the States of Ohio, Indiana, Illinois, Michigan and Wisconsin was claimed by Virginia, and afterwards by Act of the Legislature of Virginia and by deed of General Sessions, dated March 1st, A. D. 1784, said territory was con- veyed to the United States; that afterwards on the 13th day of July, 1787, the Congress of the United States, then existing under the Articles of Confederation, enacted a certain Ordinance en- titled ‘‘An Ordinance for the Government of the Territory of the United States Northwest of the Eiver Ohio,” commonly known as the Ordinance of 1787. That said Ordinance, among other things in’ Section 14 thereof contained the following: 4 “It is hereby ordained and declared by the authority afore- said, that the following articles shall be considered as articles of compact between the original states and the People and States in said territory, and forever remain unalterable, unless by com- mon consent, to-wit . * * * Article 4 , * * * the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederation, without any tax, impost, or duty therefor.” . Congressional Legislature. On May 18th, 1796, the Congress passed a statute entitled “An Act providing for the sale of lands of the United States in the territory Northwest of the Eiver Ohio, and above the mouth of the Kentucky Eiver.” And Section 9 thereof provides as follows: “Section 9. And be it further enacted that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways.’’ On May 7 , 1800, Congress passed an Act entitled, ‘‘An Act to divide the Territory of the United States Northwest of the Ohio into two separate governments;’’ that in that division what now constitutes the States of Indiana and Illinois were established as the territory of Indiana. 5 On March 26th, 1804, Congress passed a statute entitled, “An Act making provision for the disposal of the public lands in Indiana Territory and for other purposes,” and by Sec- tion 6 thereof it was provided that “All the navigable rivers, creeks and waters within the Indiana Territory shall be deemed to be and remain public highways. Congress by its Act of February 3rd, 1809, entitled “An Act for dividing the Indiana Territory into two separate govern- ments” establishes the Territory of Illinois, embracing the terri- tory in the State of Illinois, and among other things in said act provided that “there shall be established within the said terri- tory a government in all respects similar to that provided by the Ordinance of Congress passed on the 13th day of July, 1787; for the government within the territory of the United States, Northwest of the River Ohio; and by an act passed on the 7th day of August, 1789, entitled ‘An Act to provide for the Gov- ernment of the Territory Northwest of the River Ohio’; and the inhabitants thereof shall be entitled to and enjoy all and sin- gular the rights, privileges and advantages, granted and secured to the people of the Territory of the United States Northwest of the River Ohio by said ordinance.” 6 Congress by its Act of April 18, 1818, enacted a Statute entitled “An Act to enable the People of Illinois to form a constitution and state government, and for the admission of such state into the union, on an equal footing with the original states” which act among other things contains the following provision : “Section 4. And be it further enacted * * * provided, that the same, when formed, shall be republican, and not repugnant to the Ordinance of the 13th of July, 1787, between the Original States and the people and states of the Territory Northwest 54 of tlie Eiver Ohio, excepting so much of said Articles as relate to the boundaries of the States therein to be formed. * * That the people of the Illinois Territory adopted the Constitu- tion of 1818, the preamble of which contains the following, to wit : ‘‘The People of the Illinois Territory having the right of admission into the general government as a member of the Union, consistent with the constitution of the United States, the Ordinance of Congress of 1787, and the Law of Congress, approved April 18, 1818, entitled ‘An Act to enable the people of the Illinois Territory to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original states, and for other purposes’; in order to establish justice, promote the wel- fare and secure the blessings of liberty to themselves and their posterity, do, by their Eepresentatives in convention, ordain and establish the following constitution or form of government, and do mutually agree with each other to form themselves into a free and independent State, by the name of the State of Illinois.” On December 3, 1818, Congress adopted a certain resolution en- titled, “Eesolution declaring the admission of the State of 7 Illinois into the union,” which declared among other things that “the Constitution and State government so formed is Eepublican, and in conformity to the principles of the Articles of Compact between the original States and the People and States in the Territory Northwest of the Eiver Ohio, passed on the 13th day of July, 1787 ^ ^ L” Location of Eiveb. III. Charges that the Desplaines Eiver is situated in said territory rising in Wisconsin, flows in and through certain coun- ties in Illinois, in all a distance of about 96 miles. That the Eiver Kankakee rises in Indiana and flows into Illi- nois and through certain counties, uniting with the Desplaines Eiver in Grundy County, and the two rivers thus forming the Illinois Eiver, which empties into the Mississippi Eiver, and that by reason thereof the Desplaines Eiver is subject to the pro- visions of the said Acts of Congress. Early History. 8 IV. Charges that the Desplaines Iliver is sliown liy the history, explorations and discoveries at the time of said ex- plorations and discoveries was navigable from a point near where is now the City of Chicago to its month, and tliat it was used as a highway for commercial purposes, that commerce was carried on on said river and on the Chicago Eiver, located in Cook County, Illinois, and the two connected by a short portage near what is now the City of Chicago, and that the same was used as the highway of commerce leading from Lake Michigan and the waters emptying into the St. Lawrence Eiver on the one hand to the Illinois Eiver and the waters of the Mississippi Eiver on the other hand, and from that time on until the time when the said Ordinance of 1787 and the said several Acts of Congress were re- spectively enacted. State Legislation. That afterwards the State of Illinois, by and through the Leg- islature thereof, and in obedience to the several Acts of Con- 9 gress set forth, assumed and took charge of the said Des- plaines Eiver, and did, by its certain Act of February 19, 1839, authorize the building of a toll bridge across said Desplaines Eiver on the Northeast 1/4 of Section 11, Town 39, North, Eange 12, East of the Third P. M. ; and by the same iVct gave permission to build another bridge across said river on the S. E. 1/4 of Sec. 2 in the same town and range. That on February 26, 1839, the Legislature of Illinois passed an Act entitled ‘L4n Act to amend the several laws in relation to the Illinois and Michigan Canal” which, among other provis- ions, contained the following, to wit: ^^Sec. 2. Sub-Section 9. That no stream of water passing through the canal lands shall pass by the sale so as to deprive the state from the use of such water if necessary to supply the canal, without charge for the same.” And sub-section 11 of said Section 2 of said Act is in the words following, to-wit: ^‘Sub-Section 11: Lands situated upon streams which have been meandered by the surveys of pub- ]ic lands by the United States shall he considered as bounded by the lines of those surveys, and not by the stream.” 10 The Legislature of Illinois, by its act entitled ‘‘An Act de- claring the Desplaines Kiver a navigable stream” in force February 28, 1839, provided as follows: “Sec. 1. Be it enacted by the People of the State of Illi- nois, represented by the General Assembly, that the Des- plaines Elver from the point where it most nearly connects itself with the Illinois and Michigan Canal, to its source, with- in the boundaries of this State is hereby declared a navigable stream, and shall be deemed and held a public highway, and shall be and remain free, open and unobstructed from said point of connection with said canal to its utmost limits with- in this state, for the passage of all boats and water craft of every description.” That afterwards, the Legislature by its Act of March 3, 1845, entitled, “An Act to authorize Stephen Forbes to construct a dam across the Desplaines River in Cook County” provided as follows, to-wit: “Sec. 1. Be it enacted by the People of the State of Illi- nois, represented by the General Assembly, that Stephen Forbes, or his heirs and assigns, be, and they are hereby au- thorized to construct, build and continue a mill-dam across the Desplaines River, on the southwest quarter of Section thirty-six (36) in Township number thirty-nine (39) North of Range twelve (12), East, and on the Northeast quarter of Section two (2), Township number thirty-eight (38) North of Range twelve (12), East, in the County of Cook in this State ; provided, that this Act shall not operate to prevent the State from improving said river by dams or from using the water in said river for the Illinois and Michigan Canal at any time hereafter, or for any other purpose; provided, that he shall be liable for any damage to any individual in con- sequence of the erection of such dam.” Tliat afterwards the Legislature, by its Act entitled “An Act authorizing the building of a bridge and road in Township thirty- six, North, Range 10, East, in Will County, approved and in 11 force February 12, 1849, authorized the construction of a bridge over the Desplaines River at Lockport, in AVill County. That the Legislature, by its Act entitled, “An Act to create Sanitary Districts and to remove obstructions in the Desplaines and Illinois Rivers” in force July 1, 1889, among other things^ provided l)y Section 23, which section provided for the size of a 57 cliaimel that may be cut connecting with Lake Michigan, and tlie capacity of the same from time to time, and for the payment of damages to private property that ‘Hhen such Sanitary Dis- trict shall, within one year thereafter, enlarge the entire channel leading into said Desplaines and Illinois Rivers from said dis- trict, to a sufficient size and capacity to produce and maintain a continuous flow throughout the same, of not less than 600,000 cubic feet of water per minute, with a current of not more than tliree miles per hour,” and further provides that it shall furnish a supply of water not less than eighteen feet deep, and the size of the channel, and authorizes the district constructing the channel, to carry water from Lake Michigan, to correct, modify and re- move obstructions in the Desplaines and Illinois Rivers wherever it shall be necessary to do so, to prevent overflow or damage. And by Section 24 of said Act it is provided : ^‘Sec. 24. When such channel shall be com])leted and the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream, and whenever the general government shall improve the Desplaines and Illinois Rivers for navigation; to connect with this channel, said general government shall have full control over the same for navigation purposes, but not to in- terfere with its control for sanitary drainage purposes.” 13 The Legislature on May 14, 1903, passed an Act entitled ^L\n Act in relation to the Sanitary District of Chicago, to enlarge the corporate limits of said District, and to provide for the navigation of the channel created by such district, and to con- struct dams, water-wheels, and other work necessary to develop jind render available the power arising from the water ])assing through its channels, and to levy taxes therefor,” which Act con- tained the following: ^^Sec. 3. Said Sanitary District shall permit all water craft navigating or purposing to navigate said Illinois and Michigan Canal, to navigate the water of all said channels of said Sanitary District promptly, without delay, and with out the payment of any tolls or lockage charges for so nav- igating in said channels. * * *” ^^Sec. 8. The said Sanitary District shall, at the expense of said district, in all respects comply with the provisions of the Act of Congress of May 22, 1822, and March 2, 1827, as construed by the courts of last resort of the State of Illi- nois, and of the United States, in relation to the Illinois and 58 Micliigan Canal, so far as it affects that portion of the Illinois and Michigan Canal vacated or abandoned in the terms of this Act.” That the Sanitary District of Chicago was formed in pursuance thereof, that it has constructed one channel substantially in II compliance with the provisions of said statute. That said channel commences at a point of junction with the Chicago Diver in the City of Chicago, and e:jvtends southwesterly through the County of Cook and into Will County, where it connects with and enp^ties its waters into the Desplaines Eiver at a point north of Joliet in Will County, and through which channel there is dis- cliarged, and has been for several years past 300,000 cubic feet per nainute, and that said body of Avater is discharged into and merges with the waters of the Desplaines Diver, to the mouth of said Desplaines Diver in Section 25, Town 31, North, Dange 8, East of the Third P. M. in Grundy County. That the Legislature enacted its certain statute and the same became in force from approval on and after the 6th day of De- cember, 1907, entitled ‘LI bill for an Act recognizing the Desplaines and Illinois Divers as navigable streams and to prevent obstructions be- ing placed therein, and remove obstructions therein now ex- isting.” “Sec. I. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That the Desplaines and Illinois Divers throughout their courses, from and below the water plant of the main channel of the Sanitary District of Chicago, in the township of Lockport, at or near Lockport, 15 in the County of Will, are hereby recognized as, and are here- by declared to be navigable streams ; and it is made the special duty of the Governor and of the Attorney General to prevent the erection of any structure in or across said stream, with- out explicit authority from the General Assembly; and the Governor and Attorney General are hereby authorized and directed to take the necessary legal action or actions to re- move all and every obstruction now existing in said rivers that in anv wise interferes with the intent and purpose of this Act.” It Is Navigable in Fact. That the Desplaines Diver, ever since the adoption of the Ordi- nance of 1787 by the Congress of the United States, until the pres- ent time, formed in its ordinary condition, and by itself, to the extent of its course, from the point of said portage and connection with the Chicago Eiver in Cook County, Illinois, to its mouth in Grundy County, Illinois, and then forward by uniting with the said Illinois Eiver, a continued highway, with water in sufficient volume and of sufficient depth to afford a channel for navigable and commercial purposes. Wherefore it charges that the Desplaines Eiver, from near Chicago to its mouth, has been, from the earliest knowledge of said river, until the present time, in law and in fact, a navigable river, and that the several Acts of the Legislature show that 16 it has been the policy of the State of Illinois to hold and maintain said Desplaines Eiver to be a navigable river, and the same being a navigable river, both in law and in fact, said river is subjected to the provisions of the several Acts of Con- gress hereinbefore set forth, and by reason whereof the said Des- plaines Eiver has been and still continues to be a highway of commerce, and as such is preserved for the use of the people of the State of Illinois, and the people of the States of the United States as a public highway, and has not been alienated from the rights of the people as a public highway, and that the people of the State of Illinois, and of the United States have an ease- 'ment over said river as a public highway for commerce, and that said river and the bed and waters thereof are permanently im- ju’essed and burdened with said easement, and with a public right and public use of navigation. V. Charges that the Congress of the United States by its Act approved March 2, 1827, granted to the State of Illinois every alternate section in a strip of land ten miles wide along the line of the Illinois and Michigan Canal, for the purpose of aiding the opening of a canal to connect the waters of the Illinois Eiver with those of Lake Michigan, and that among said lands so conveyed is Section number 25, in Township number 34, in Eange 8, East of the Third Principal Meridian, in Grundy County, Illinois. 17 That the Legislature of Illinois, in the exercise of its power and control over said lands passed its certain Act, to wit: ^L\n Act to amend the several laws in relation to the Illinois and GO ^.[idiigan Canal,” in force Febrnary 26, 1839, in which Act is found the following, to wit: ‘‘Sec. 2. Sub-Section 11: Lands situated upon streams which have been meandered by the surveys of public lands by the United States shall be considered as bounded by the lines of those surveys and not by the streams.” Title of Land Is in the State. That the Desplaines Eiver was meandered. Charges that purchasers of land in said Section 25 and other land similarly situated with reference to the Desplaines Eiver did not take and did not claim to take, under their several purchases, that portion of said lands lying between the meander line of the Desplaines Eiver and the waters of said river; that said 18 lands so situated between the meander line and the bed of the river have never been used by any individual under claim of authority or right, except the defendant. Wherefore, it is charged that by reason thereof the land in said Section 25, between the meander line of the Desplaines Eiver and the bed of said river has not been sold by the State of Illinois, and the title of the same has not passed by any purchase of adjoining lands, and that the same, and every part thereof, is now owned by the State of Illinois, and held by said State for the use and benefit of the people of the State of Illinois, and of the ]^eople of the Lhiited States, as a public highway for commerce. Xo Title in Defendant Through Boyer Deed. VI. A deed was executed by the Trustees of Illinois and Mich- igan Canal to Charles E. Boyer, dated October 22, 1860, for cer- tain tracts of land described therein as follows, to-wit : “The South fraction of the Northwest quarter, and the North Fraction of the Southeast quarter, and the North Fraction of the Northwest quarter, and the South Fraction of the Southeast quarter of said Section 25, in Township 19 34, North, of Eange eight (8) East of the Third Principal ^leridian, excepting and reserving so much of said tract as is occupied by the canal and its waters, and a strip ninety feet wide on either side of said canal, containing 196.62 acres, more or less, said tract being a portion of the land granted by the Lhiited States by the Act of INFarch 21, 1827, and the ' G1 28th day of August, 1854, to the State of Illinois, to aid said state in opening a canal to connect the waters of the Illinois River with those of Lake Michigan, and by said State granted to the said Board of Trustees of the Illinois and Michigan Canal for the purposes set forth in said Act of said State of February 21, 1843.” Here again is charged and set forth the Act of the Legislature of February 26, 1839, as follows: ^‘Sec. 2. Sub-Sec. 9. That no stream of water passing through canal lands shall pass by the sale, so as to de])rive the state from the use of such water if necessary to supply the canal, without charge for the same.” ‘‘Sec. 2. Sub-Sec. 11. Lands so situated upon streams which have l)een meandered by the surveys of public lands by the United States shall be considered as bounded l)y the lines of those surveys and not by the stream.” Wherefore the bill charges that the lands in the Northwest quarter and in the southwest quarter of said Section 25, Town 3-1, Range 8, lying and being situate outside of the meander line of the Desplaines River, were conveyed by said deed to the said Charles E. Boyer, but that the same remains the property of the State of Illinois. Charges that the claim of the defendant, the Economy Light & Power Company, to said portion of said premises so situated outside of the meander line of the Desplaines River in said Sec- tion number 25, is based upon mesne conveyances from the said Charles E. Boyer and the several contracts and leases hereinafter set forth. 20 VII. This paragraph sets forth the Act of Congress of March 2, 1827, giving of alternate sections of land to the State of Illinois, to aid in the construction of said canal and the right of way through the other sections of land through which the canal ran, and the manner and way of determining what sec- 21 tions were given to the State of Illinois, and what sections were reserved, and shows that the odd numbered sections were taken by the State of Illinois, and the even-numbered sec- tions reserved by the United States, and that the canal was laid out by the Commissioners and the construction thereof began and provided for the reservation of a 90-foot strip of land on each 62 side thereof, for use as a tow-patli, and as a part of the canal throughout the length thereof; that in 1847 and 1848 Artemus J. Matthewson, a surveyor and engineer, under authority and direc- tion of the Canal Trustees, surveyed and marked the lines of the 90-foot strip on each side of the canal, as finally located, from 22 one end to the other, and pre^Dared and filed in the office of the Board of Trustees, maps and profiles of said survey, and that said 90-foot strip of land was reserved from sale by the Canal Commissioners, and Canal Trustees, in said odd-numbered sec- tions, and the title thereto remains in the State of Illinois, and that said 90-foot strip, together with the lands necessary for the right of way through the even-numbered sections, through which the canal was constructed, constitute integral parts of the said canal, and are necessary for its preservation and use, and are, by law, preserved and protected against alienation, and said 90-^ foot strip is so expressly reserved from sale in said deed by said Trustees of the Illinois and Michigan Canal to said Charles E. Boyer. Contracts of Commissioners Unauthorized. 23 VIII. That the Canal Commissioners of Illinois entered into a certain contract dated September 2, 1904, with one Harold F. Griswold; that Griswold assigned the same to the Econ- omy Light & Power Company. Copy of said contract attached to and made a part of the bill as Exhibit A. xVlso charges that said Canal Commissioners entered into a contract and lease with said Griswold, dated September 2, 1904, a copy of which is attached to the bill, and marked Exhibit I), and made a j^art thereof, and that the same was assigned by said Griswold to the defendant. That the said Canal Commissioners entered into another con- tract with the said Griswold, dated August 4, 1905, a copy of which it attached to the bill and made a part thereof and marked Exhibit Ch and which said contract was by the said Griswold assigned to the defendant. That the Canal Commissioners made application to the Gov- ernor of the State of Illinois for his consent to the sale of certain 63 lands, which application is dated June 11, 1904, a copy of the same attached and marked Exhibit D, and made a part of said bill, and that a copy of the approval of said application for said sale by the Governor as of the date of June 14, 1904, is attached, marked Ex- hibit E, and made a part of the bill. An advertisement of said sale in the Lockport Phoenix-Adver- tiser, copy of which said notice with its certificate of publication is attached and made part of the bill as Exhibit F. 25 That by said notice the ])remises mentioned were advertised to be sold on the 2nd day of August, 1904, but that no sale of said premises was made on the 2nd day of August, 1904, but that the sale was adjourned and never thereafter resumed. That after said 2nd day of August, 1904, and under date of Sep- tember 2nd, 1904, the Canal Commissioners entered into the agreement and lease hereinbefore mentioned and marked res])ec- tively Exhibits A and P, that afterwards, on November 1st, 1904, the Canal Commissioners made application to the Governor of the state for his consent to the sale of certain lands in said applica- tion described, co])y of which application is attached to the bill and made a part thereof as Exhibit G. That the approval of the Governor under date of the 2nd of November, 1904, is attached and made a part of the bill as Exhil)it II. That in pursuance of said application and approval, notice of sale was inserted in the Lock- port Phoenix- Advertiser, copy of which is hereto attached and made a part of the bill as Exhibit I. 26 That under said notices the Canal Commissioners executed a deed to Harold F. Griswold as of the 6th day of January, 1905, copy of which deed is hereto attached and made a part of the bill as Exhibit J; and charges upon information and belief that Harold F. Griswold conveyed said premises, so that by mesne conveyance, same are purported to pass to the defendant in this case. ' Charges upon information and belief that said Canal Commis- sioners entered into another contract or lease with Harold F. Griswold as of date of September 2, 1904, a copy of which said con- tract of lease is attached to and made a part of the bill as Exhibit 64 K, and charges upon information and belief that the same was by mesne assignments conveyed to the defendant. 27 And so it is, the bill charges upon information and belief, that the defendant, claiming to act by pretended right, by these several contracts and deeds, to erect a dam across the Desplaines River and across certain lands adjacent thereto, and across the 90 foot strip of land so used for canal purposes, immediately adjoin- ing the waterway of the said Illinois and Michigan Canal and flow the bank or tow path of the said Illinois and Michigan Canal, and so to construct said dam as to flood the land along the Desplaines River for a distance of ten miles, or thereabouts, about the loca- tion of said proposed dam, and the said proposed dam is located on the southeast quarter of said Section 25, above described, and that in pursuance of such claim of right the defendant has com- menced the construction of said dam. But the bill avers that said several leases and deeds are ineffectual to confer any right to build or maintain the said dam. The bill charges that by resolution of the General Assembly of Illinois, passed on the 16th day of October, 1907, copy of 28 which is attached to the bill marked Exhibit L, and made a part thereof, proposed the building of a deep waterway, com- mencing at the southern end of the Chicago Drainage Canal, and extending southwesterly along the line of the Desplaines and Illi- nois Rivers in accordance with plans and specifications formulated by the Corps of Engineers of the United States Army, and under and by direction of certain Acts of Congress, and that the Legis- lature of Illinois has submitted to the people of Illinois the ques- tion of authorizing the construction of said deep waterway. That if the same is built a dam will necessarily be built near the site of the proposed dam of the defendant, and the same will incident- ally afford water power of great value, and that the same will be lost to the State of Illinois, if the defendant shall be permitted to construct the dam here mentioned. Bill denies the right or authority of the Trustees of the Illi- nois and Michigan Canal, or the Canal Commissioners to convey the lands composing the bed of the stream of the Desplaines 29 River, or any part or portion of the lands of said Section num- ber 25, outside of the meander line of the Desplaines River. Charges that tlie 90 foot strip of land along the Illinois and Michigan Canal is necessary for its maintenance and constitutes an integral part of said canal, and denies that the Trustees of the Illinois and Michigan Canal, or the Canal Commissioners of Illi- nois had any authority under the law to convey the same hy deed, lease or otherwise. Whep^efore, the hill charges that the defend- ant has not acquired any right, title or interest in the hed of the stream of the Desi)laines Kiver, or that portion of Section twenty- five above described, lying and being outside of the meander line of the said Desplaines Iliver, or in and to the 90 foot strip of land, lying between the waters of the Illinois and Michigan Canal and the said Desplaines Kiver, and that said deed, leases, contracts and other agreements, in so far as they pertain to the hed of the stream of the Desplaines River, and to the lands outside of the meander line, and to the 90 foot strip of land so reserved for the use of the Illinois and Michigan Canal, and so located in said southeast quarter of said Section 25, are void and of no effect. 30 Bill charges that by virtue of the several enactments of the Congress of the United States herein set forth, and the sev- eral Acts of the Legislature of the State of Illinois as herein set forth, the bed of the Desplaines River is owned by the State of Illinois, and the same has not been conveyed to anyone, and that the lands outside of the meander line in said Section 25, and other sections along the line of said Desplaines River so granted to the State of Illinois, have not been conveyed by the State of Illinois, nor by any other person, persons or corporation whomsoever, hav- ing authority so to convey the same, and that the same remain and are owned by the State of Illinois. Defendant About to Erect a Dam. IX. Charges that the defendant claims to own the bed of the stream of the Desplaines River, and other lands in said South- 31 east quarter of said Section number 25 and other lands for several miles up said river which are outside of the meander line of the Desplaines River, and that they threaten to erect, and have actually begun the erection of a dam across the Desplaines G6 Kiver and across the 90 foot strip of land so reserved for the use of the Illinois and Michigan Canal, and across other lands out- side of the meander line of the Desplaines Eiver, and to connect said dam with the bank or tow path of the Illinois and Michigan Canal, and so construct said dam as to cause the water to be backed up and to overflow the lands belonging to the,State of Illinois, and other lands for a long distance above said proposed dam, to wit : for the distance of ten miles or thereabouts. ‘ Notice to Stop. Charges that the Attorney General, on the 12th of December, 1907, served notice on the defendant in writing to cease and desist from in any manner infringing upon, or interfering with the said land owned by the State of Illinois, or in which the people have an easement for the benefit of the public, located in the said Sec- tion 25 in Grundy County, Illinois, by the erection of a dam there- on, or otherwise, and to cease and desist from in any way obstruct- ing the Desplaines Eiver or the Illinois Eiver in said Section 32 or elsewhere, and further notifying and commanding the de- fendant to remove any and all obstructions it may have placed upon said premises, whether the same is in the bed of the Des- plaines Eiver or otherwise, which notice was served by delivering a copy to John F. Gilchrist, Secretary of the defendant company, who then and there, in behalf of said company, acknowledged ser- vice and receipt of the same, copy of which said notice is attached to the bill and made a part of the same as Exhibit M. Charges that the defendant ignored said notice and command, and con- tinued and persisted in the work of constructing said dam. That said dam, if permitted to be erected, will destroy and 33 interfere with the Desplaines Eiver as a navigable water- way; that it will overflow and destroy the value of the lands and the use of the lands belonging to the State of Illinois, adja- cent to said Desplaines Eiver and outside of the meander line of said river; that it will destroy the use of the 90 foot strip of land, so to be retained for the use and benefit of the Illinois and Michi- gan Canal, and render the same inoperative and of purpresture impaired benefit to said canal, that it will destroy the feeder of the Illinois and Michigan Canal, and will constitute a purpresture, and that the same will produce and work irrevocable loss and dam- age to the Illinois and Michigan Canal, and to the State of Illi- nois, and to the rights of the peo])le of the State of Illinois. Description of Contracts. X. Charges that said agreement, Exhibit A, purports to give authority and consent by the Canal Commissioners under Gris- wold and his assigns, to dam the Desplaines River, to back up water upon the 90 foot strip, and cause the same to be flooded; to excavate and remove portions of said Kankakee feeder, to 34 attach said proposed dam to the tow path of the canal, to di- vert water from the Desplaines River, to attach and close up a levee to and along the tow path bank of said canal, to use the gravel and material, the property of the state, to enter upon the canal lands and the canal itself in and about said work, and to raise, change and alter buildings owned by the state and used in connection with said canal; and charges that each and all of said provisions are beyond the power of said Canal Commissioners to grant. That said consent and permission was without limit of time and should be held in law and in equity to be without authority, and to confer no authority, and to be against the public policy of the state anddn derogation of the right and interest of the people, and to be revocable by the state. That said Exhibit B purported to convey and demise inter- 35 ests in the said 90 foot strip in that part of the canal called the Kankakee feeder, and to give a first right of renewal to the said Griswold, and the same purported to be made suliject to the contract marked Exhibit A; that each of said instruments purported to give Griswold the right to assign said contract and that one of them might be assigned to one person and another to another. Charges that both parties had knowledge that the grantee in- tended to erect a dam and develop water power thereon, and that the same amounted to a lease of water power right, and lands and lots connected therewith. That the said lease and contracts were not, nor were either of them, entered into upon notice by publica- tion, nor limited to a period of ten years, contrary to the statute of March 27, 1874, and acts amendatory thereof, and in particu- lar to the provisions of clause 6 of Section 8 of said statute, as amended by the Act of June 19, 1891, and the bill charges that the same are beyond the powers of the Commissioners to enter into, and are null and void. 36 Charges that, treating the said instrument as leases of water power, they are subject to the power of the state to re- sume, without compensation to the party of the second part there- in named, the use of such water power, and are further subject to the power of the state to abandon or destroy the works by the construction of which water power the privilege therein purported to be conferred shall have been created, whenever in the opinion of the Legislature such work shall cease to be of advantage to the state, all in accordance with the provisions of said clause 6 of said Section 8 of said Act approved March 27, 1874, as amended by said Act approved June 19, 1891. Eecites that in the opinion of the Legislature such work has ceased to be advantageous to the state, and same was duly ex- pressed by statute approved and in force December 6th, 1907, en- titled ^L\n Act recognizing the Desplaines and Illinois Eivers as navigable streams, and to prevent obstructions being placed there- in, and to remove obstructions therein now existing.” Charges that said contract marked Exhibit C, purports to leave to Griswold such rights as are under the control of the Canal Com- missioners to divert the waters of the Kankakee Eiver into 37 the Kankakee feeder and discharge the same into the Des- plaines Eiver, and to destroy and reconstruct the dam across the Kankakee Eiver and to construct at each end of said Kanka- kee feeder suitable gates for controlling the discharge of the Kan- kakee Eiver through said feeder, and to enter upon the Kankakee feeder for the purposes therein named. But the bill shows that the said contract was a further lease, for the purpose of enabling the assignee therein to develop and create water power. It was not made in conformity to the pro- visions of the statute last cited in reference to the Illinois and Michigan Canal ; and charges that the said Kankakee feeder is an integral part of said canal, and that said agreement was beyond the power of said Commissioners to make. The bill further shows that said lease, Exhibit C, contains the following provision, to wit: “It is herein further stipulated and agreed and the Canal Commissioners hereby expressly reserve the right to cancel this lease and recover possession of the land, property and rights above demised and referred to, whenever, in the judg- ment of the Canal Commissioners, or other proper officers of the state, at such time having charge of the canal property, they shall deem the interests of the state revquire it to repos- sess and use said property for state purposes.” And the bill charges that such power of revocation and cancella- tion may be exercised by the Legislature of the state, and the 38 same was exercised by said Act in force l)ecem])er 6th, 1907, above cited, and shows that the exercise of the powers and privileges and rights purporting to l)e conferred l)y said lease, Exhibit C, constitutes and creates obstructions of the Desplaines River. That the said deed, Exhil)it J, pur])orts to convey the land there- in described, and in terms to include lands lying and being situated outside of the meander line of the Desplaines River, and purports to be subject to the terms of said flowage contract, marked Ex- hibit A, and said lease marked Exhibit B, and to renew the cov- enants thereof by the certain provisions in said deed referring thereto, which recites that the said deed is “subject, however, to the terms, conditions and provisions of the flowage contract and lease made with the said Harold F. Griswold, and bearing date September 2, A. D. 1904, which terms, conditions and privileges, still remain in full force, and shall be fully kept and performed.” And the bill charges that said lots and land described are con- nected with the water power privileges sought and purported to be conferred and created by said contract. Exhibit A, and said lease Exhibit B, and that said advertisement thereof did not so desig- nate and describe said property, and did not limit the same to the term of ten years, as prescribed by law, and that the same are be- 70 yond the power of said Commissioners, and are null and void 39 and subject to the power of the state to resume the same and to abandon and destroy the works by the construction of which water privileges shall have been created, whenever, in the opinion of the Legislature, such work shall be deemed to be disadvant- ageous to the state, and that the Legislature has so declared by its Act in force December 6th, 1907, above quoted. The bill charges that said pole line lease, marked Exhibit K, purports to convey to Griswold, his successors and assigns, the right to maintain a line of poles along the said canal from the west line of Section 25, upon which said dam has been located, to Joliet, and from the same point in said Section 25, to the City of Morris, in^ Grundy County. And your orators show that said lease was made upon the same day as said contract and lease, Exhibits A and B and was for the purpose of developing the said water power, and transferring and conveying the same, as electrical energy by said proposed line of poles, and was subject to all the infirmities herein alleged as to said contract and lease. Exhibits A and B, and that said contract, deeds and leases, were each and all of them entered into on 40 inadequate consideration. Then follows the prayer of the bill 41 and the prayer for injunction, and for summons. 42 Bill sworn to. Then the following order by the Court: ‘‘That an injunc- tion issue according to the prayer of the bill, with permission to the defendant to protect the works and machinery now on the ground, without, however, extending or increasing the work al- ready done, without bond. December 30, 1907, S. C. Stough, Judge.” 43 “EXHIBIT A”— PART OF BILL. This is the fiowage contract, dated September 2, 1904, between the Canal Commissioners of Illinois and Harold F. Griswold, his successors and assigns, and recites that the second party claims to be riparian owner along the Desplaines and Illinois Rivers in Grundy and Will Counties, and as such is about to improvm 71 the Desplaines River by constructing a dam and other works across the mouth of said river in Grundy County, with a crest of such height that the pool formed thereby will he on the level with the waters of Lake Joliet (a portion of said Desplaines river in Will County, Illinois) and about to improve the Illinois River by deepening the channel of said River in Section 25, Township 34 North, Range 8 East of the Third P. M. Further recites that the State of Illinois is a riparian owner at different points on the Desplaines and Illinois rivers, within the territory conferred by this contract, as well as the owner of the hereinafter described parcels of land, under the control of the Canal Commissioners, and which are not connected with the 44 water power from the Illinois and Michigan Canal, which said riparian rights in said lands have never produced rev- enue, and the same is now unproductive of revenue, swampy, un- fit for cultivation, partially covered with water, and said land is so situated that the riparian right appertaining thereto cannot be made valuable by the State to create water power, and. Further recites that Griswold is desirous of obtaining right to use, overflow and dammage (in such manner as will not inter- fere with navigation on the Illinois and Michigan Canal) so much of the said property as may be necessary in the construction of the said dam and other works in the improvement of the said Desplaines River and in the deepening of the channel of said river. Consideration $2,200.00, receipt of which is acknowledged; agreed 1st. That the Canal Commissioners consent that Griswold shall have the right and authority in so improving the Desplaines River to construct a dam and other works across the Desplaines or Illinois River, at or near the confluence of the Desplaines and Kankakee Rivers, in Grundy County, Illinois, with a crest at an elevation of not to exceed minus 73.2 Chicago datum, but that the back water, caused by said dam, shall in no event, extend beyond the north limits of Lake Joliet (said Lake Joliet being a wide por- tion of the Desplaines River about six miles in length, and lying south of the City of Joliet in the County of Will and State of Illinois) and further consent that said Griswold may excavate in and deepen the channel of the Illinois Eiver in Section 25, Township 34 North, Eange 8 East of the Third P. M. 2nd. That said Griswold shall have the right and authority to flow the 90-foot reserve strip of the Illinois and Michigan Canal, in Sections 25 and 36, in Township 34 North, Eange 8, Grundy County, and in Sections 31, 30, 29 and 20, Township 34 North, Eange 9, Will County, Illinois, up to the canal bank; also so much of the North fraction of Section 31, Township 34 North, Eange 9 East of the Third P. M. as lies south of the 90-foot reserve strip along the tow-path side of the Illinois and Michigan Canal, where the same may be overflowed by reason of the construction of the said dam, and other works with the crest hereinbefore specified, to- gether with the right to flow the water up against the tow-path bank of the Illinois and Michigan Canal in said sections, provided the tow-path shall be protected and preserved as hereinafter pro- vided. 3rd. Said Griswold shall have the right to excavate in 46 and remove so much of the Kankakee Feeder (an abandoned feed of the Illinois and Michigan Canal) lying north of the Desplaines river and south of the 90-foot strip in Section 31, Township 34 North, Eange 9, Will County, as may be necessary to discharge the water of the Desplainer Eiver through said Sec- tion 31 in a proper manner, and shall also have the privilege of re- moving the old acqueduct piers in said Section. 4th. That said Griswold shall have the right to erect, attach, repair and maintain said dam and other works or structure up against the tow-path bank of the Illinois and Michigan Canal, in Section 25, Township 34 North, Eange 8 East of the Third P. M., in Grundy County, but not so as to interfere in any man- ner with the use of said tow-path, in connection with said canal. 5th. Griswold given authority and right to turn and divert from the Desplaines Eiver a certain stream of water called ^‘The Kankakee Cut-otf’’, through, over and across said Kankakee feeder, and the 90-foot strip on each side of said feeder, in Sec- tion 5, Township 33 North, Eange 9 East of the Third P. M., and to construct upon the banks of said feeder controlling gates for flood protection from said Kankakee Eiver. 6th. Griswold agrees to raise the tow-path bank of the 47 Illinois and Michigan Canal, not less than two feet, and to any additional height which may be necessary to prevent overdo w, and to perpetually maintain the same in good con- dition. The raising of said tow-path shall extend from the point in said Grundy County where the dam or other structure of said Griswold shall intersect said tow-path bank to lot No. 7 in Section 17, Township 34 North, Range 9 East of the Third P. M., and when raised, the height of the tow-path bank shall conform to the width of the tow-path as it exists at the present time. 7th. Permission is given to said Griswold to attach and close a levee to the tow-path bank of the Illinois and Michigan Canal at the point in said tow-path bank, where the east and west half section lines of Section 20, Township 34 North, Range 9 East of the Third P. M. inte^'cept sadd tow-pa tli bank; further per mission is also given to construct levees on the east and west bank of the DuPage River from the dam across said river to the north line of Section 20, Township 34 North, Range 9 East of the Third P. M., and attach and close said levees to the west and east sides respectively of said dam across the DuPage River, in Sec- tion 17, Township 34 North, Range 9 East of the Third P. M., as indicated by blue prints attached to the contract. 48 8th. Permission given to Griswold to use the gravel and other material lying along the Illinois and Michigan Canal, the property of the State of Illinois, to raise said tow-path. 9th. That the said Griswold is hereby authorized to enter upon the lands or premises of the State of Illinois, part and parcel of the Illinois and Michigan Canal, and to enter upon said canal itself in a manner and to the extent that shall be necessary to raise and maintain the tow-path as above provided, and to attach and build said dam or other works onto said tow-path bank, and to repair, maintain and renew the same as shall become necessary for the preservation thereof. 10th. Provides for raising the buildings on the tow-path. 49 11th. Provides that all work done shall be under the sui)er- vision and to the satisfaction of the Canal Commissioners, or their duly authorized agent or agents, and that said works 74 shall at all times be maintained by the said Griswold under like supervision and approval of said Canal Commissioners, or their officers and agents. 12th. Provides that the cost of inspection of said work shall be paid by the said Griswold. 13th. Provides that Griswold shall be responsible for damages that may be sustained by the State of Illinois or the Canal Com- missioners, or the canal property, or the persons or ]3roperty 50 of said Illinois and Michigan Canal occasioned by the con- struction of the works and in its subsequent repair and main- tenance, or which shall be occasioned by the use of the dam, levees or other works above provided, and provides that this agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. ‘‘IlxniBiT B” — Pakt op Sajd Bill. 51 Dated September 2, 1904, between the Canal Commission- ers of the State of Illinois and Harold F. Griswold, in a lease of certain premises, to-wit: the 90-foot strip along the top-side and outside of the tow-path of the Illinois and Michigan Canal in Section 25 (and other sections) ; also that part of the Kan- kakee feeder and the 90-foot strip on each side of said feeder, being the same as the description set forth in the foregoing Exhibit A Said lease for twenty years from Septendier 2nd, 1904, and expressly made subject to the contract of September 2, 1904, to said Griswold, affecting said premises: Consideration $500, in full for the full term of the lease. 52 Expressly charges the said Griswold with full knowledge of all the provisions contained in the contract marked Exhibit A. Provides for the first right or privilege of the said Griswold to re-lease the same after the expiration of the lease, and provides how the rental value shall be fixed, and provides that if the said Griswold shall desire to re-lease said premises at the expiration of the twenty year lease he shall give one year notice in writing, and provides that this contract or lease shall be binding upon the heirs, executors, administrators, successors and assigns of the parties to the lease. 54 ‘‘Exhibit C” — Part of Said Bill. Made August Slli, 1905, l)etween the Canal ( ominissioners and Har.old F. Griswold, recites that Griswold has made application to the Canal Commissioners to lease the right of the state to divert the waters of the Kankakee Eiver into the Kankakee feeder and discharge the same into the Desplaines River in Section 31, Township 34 North, Range 9 East of the Third P. M., and also the right of the state to reconstruct the dam, the property of the State of Illinois, across the Kankakee River in Section 9, Town- ship 34 North, Range 9 East, and the right of the state to repair the branch of said Kankakee feeder and the right to construct suitable gates to control the discharge of said waters through said feeder and recites : That the Atchison, Topeka & Santa Fe Railroad Company and the Chicago & Alton Railway Company, have made separate fills or embankments across the feeder in Section 9, Township 33 North, Range 9 East, with the permission of the Canal Com- missioners, and are now using the same as a part of their re- spective roadbeds across the feeder. Therefore, in consideration of the premises, and the covenants hereinafter set forth, the application of said Griswold is granted, and the Canal Commissioners doth lease to said party of the second part the right of the state now within the control of the Canal Commissioners, to-wit, such right as is now under the control of the Canal Commissioners to divert the waters of the Kankakee River into the Kankakee feeder, and discharge the same into the Desplaines River in Section 31, Township 34 North, Range 9 East, together with such right of the state as is now under the control of the Canal Commissioners to restore and reconstruct the dam across the Kankakee River, in Section 9, Township 33 North, Range 9, but in such restoration the crest of such dam shall not be higher than it has heretofore been; also such right of the state as is within the control of the Canal Commissioners to con- struct suitable gates for controlling the discharge of the water, etc. ; and such right of the Canal Commissioners as they now have to enter upon the Kankakee feeder and the dam in connection therewith, for the purpose of repairing the banks of said feeder. 76 or repairing the dam across said Kankakee Eiver, or the 56 gates at each end of said feeder, and to have and to hold the same for twenty years from the date hereof, subject to the rights of said railroads and also subject to the provisions of certain leases heretofore made to Harold F. G-riswold of the City of Evanston, and Charles A. Munroe of the City of Chicago^ both of the County of Cook and State of Illinois. Consideration for said rights and privileges $150 per year ; and reserves the right to the said Griswold to cancel the lease at any time at his option after five years. Provides for restoring the dam and feeder at the end of the lease by the said Griswold. 57 Provides that the said Griswold and his assigns shall pro- tect and save harmless the Canal Commissioners and the State of Illinois from all damages growing out of the work which the said Griswold or his assigns shall or may do. Also provides 58 for the giving of a bond to protect the Canal Commissioners and the State of Illinois against all damages that may grow out of any or all things done, or attempted to be done by the said Griswold or his assigns, by virtue of this instrument. 59 Further provides for the extending of this lease for the further period of twenty years, at a rental to be fixed by an appraisal. Canal Commissioners reserve the right to cancel this lease. 62 ^‘Exhibit D” — Part of Said Bill. Request of the Canal Comimssioners to the Governor for per- mission or approval for the sale of a tract or parcel of land in Section 81, Township 34 North, of Range 9 East of Third P. M., which lies north of the center of the Hesplaines River, and south of the 90-foot reserve line of the Illinois and Michigan Canal, in Will County, Illinois. 64 ^‘Exhibit E’’ — Part of Said Bill. Approval by the Governor for the sale of the tract of land above mentioned. 77 65 ‘^Exhibit F” — Part of Said Bill. Certificate of publication for the sale of the land above 66 described. The published notice for the sale of the lands above described, same being part of the bill of complaint. 68 ‘‘Exhibit G” — Part of Said Bill. Bequest of the Canal Commissioners of Illinois to the Governor for approval of the sale of the same lands hereinbefore proposed to be sold. 70 “Exhibit H’’ — Part of Said Bili^. Approval of the Governor of such sale. 71 Notice published of said proposed sale. 72 “Exhibit I’’ — Part of Said Bill. Certificate of the publication of said notice. 74 “Exhibit J’’ — Part of Said Bill. Deed by the Canal Commissioners of the State of Illinois to Harold F. Griswold, of the lands in said notice described. 76 “Exhibit K” — Part of Said Bill. Agreement between the Canal Commissioners and Harold F. Griswold, dated September 2, 1904. Agreement for the right to maintain a pole line upon the lands of the Illinois and Michigan Canal from Joliet to Morris. Said privilege given for twenty years, with certain conditions set forth in said contract. 80 “Exhibit L” — Part of Said Bill. Besolution of the legislature for submitting to the electors of the State a proposition to amend the Constitution of the State relating to the canal, and which provides for the making of a deep waterway through the Desplaines and Illinois Bivers and disposition of the power that may be generated thereby. 78 82 ‘^Exhibit M” — Paet of Said Bill. Notice to tlie Economy Light & Power Company by W. H. Stead, Attornej^-General for the State of Illinois, commanding them to cease and desist from in any manner infringing upon, trespassing upon, or interfering with the lands owned by the State of Illinois, located in Township 34, North, Kange 8 East, in Grundy County, Illinois, by the erection of a dam or otherwise, and to cease and desist from in any way obstructing the Des- plaines or Illinois Eivers in said Section, or elsewhere, and com- manding them to remove all obstructions that may have been placed upon said premises, whether the same be in the bed of the Desplaines Eiver or otherwise, and dated December 12, 1907, and the receipt by said Economy Light & Power Company of said notice. 83 Notice to the defendant of application for injunction. 85 Summons. 87 Writ of injunction, enjoining the Economy Light & Power Comx)any and commanding it to absolutely desist and re- frain from erecting a dam across the Desplaines Eiver and across the 90-foot strip of land adjoining the water course of the Illinois and Michigan Canal on the site thereof, next to the Desplaines Eiver, and across the lands outside of the meander line of the Desplaines Eiver, and from causing the water of the Desplaines Eiver to be backed up and to overflow the lands belonging to the State of Illinois, and from permitting the obstructions already placed in said Desplaines Eiver, and on said 90-foot strip of land, and on said land outside of the. meander line of the Desplaines Eiver l)y the Economy Light and Power Company, all located in and on the southeast quarter of Section No. 25, in Township No. 34 North, Eange No. 8, East of the Third P. M. in Grundy County, Illinois, to remain therein and thereon, provided, that the defend- ant may, and is permitted, to protect the work and machinery now on the ground, without, however, extending or increasing the work already done, until this Honorable Court, in chancery sit- ting, shall make other order to the contrary. 89 Eeturn of the sheriff serving said writ. 79 90 Appearance of tlie Economy Light & Power Company en- tered, and the appearance of its solicitors, Isham, Lincoln & Beale, and Scott, Bancroft & Stephens. 91 Appearance of W. H. Stead, Attorney General of the State of Illinois, and Walter Reeves and Merritt Starr as counsel for complainant. 92 The answer in words and figures following: 92 In the Circuit Court of Grundy County, Illinois. People of the State of Illinois on the re- "" lation of Charles S. Deneen, Governor of said State, > vs. Economy Light & Power Company. THE ANSWER or ECONOMY LIGHT & POWER COMPANY, DEFENDANT, TO THE BILL OF COMPLAINT OF THE PEOPLE. OF THE STATE OF ILLINOIS ON THE RELA- TION OF CHARLES S. DENEEN, GOVERNOR OF SAID STATE, COMPLAINANT. This defendant, reserving to itself all right of exception to the said bill of complaint, for answer thereto says : That as to so much and such parts of said hill as allege that the title to the lands lying without the alleged meander lines of Despl nines River through section 25, township 34 north, range 8, east of the third principal meridian, in Grundy County, Illi- 93 nois, and the lands lying in the bed of the stream of said I)es- plaines River, through said section 25, is in the State of Illi- nois, this defendant avers that the People of the State of Illinois upon the relation of Charles S. Deneen as Governor of the State of Illinois, are not the proper parties to exhibit said bill, and this defendant avers that if said lands have not been alienated by the State of Illinois they remain a part of the canal lands, and 93 under section 9 of the Act of the Legislature of the State of Illinois, entitled ^‘An Act to revise the law in relation to the Illinois and Michigan Canal and for the improvement of the Illinois and Little Wabash Rivers,” approved Atarch 27, 1874, in force July 1, 1874, it is made the duty of the Canal Commis- 80 sioners of the Illinois and Michigan Canal ‘^to take all necessary proceedings on behalf of the State to establish the title of the State and to recover possession of any canal lands or real estate owned by the State which may be claimed by or be in the ad- verse possession of another person or party,” and they are there- hy directed ‘‘when necessary for that purpose, to cause appropri- ate suits in the name of the People of the State of Illinois to be instituted and prosecuted therefor.” And this defendant avers that if the title to said lands outside of the alleged meander lines along the said Desplaines Kiver and in the bed thereof re- mains in the State, it only so remains in the State in trust for canal purposes and the Canal Commissioners of the Illinois and Michigan Canal are the proper parties to cause said suit to be ]>r ought and to control the same, and that the Attorney General of said State upon the relation of Charles S. Deneen, the Governor thereof, or otherwise, has no right, power or authority to institute or prosecute this suit wdthout the express consent and direction of the Canal Commissioners of the Illinois and Michigan Canal; and said bill does not show that it is exhibited by or with the 94 authority of said Canal Commissioners, but, on the contrary thereof, shows that it is not exhibited by or with their authority. And this defendant as to so much of said bill as alleges title to said lands outside of the meander lines along said Des- plaines River, and in the bed of the stream, through section 25, to be in the State of Illinois, avers that there is a lack of proper par- ties complainant, and a lack of power or authority in the Attor- ney General of the State of Illinois to institute or prosecute said suit, and it prays the same advantages of this answer as if it had demurred to such parts of said bill upon the ground of want of proper parties, and lack of power or authority in the Attorney General of said State to institute or prosecute said suit. And as to so much and such parts of said bill as charge that this defendant is a trespasser upon such lands, this defendant avers that said Attorney General has no right, power or author- ity to exhibit or maintain said bill in the name of the People of the State of Illinois upon the relation of Charles S. Deneen, the Governor of said State, or otherwise, but defendant avers that 81 by virtue of the third clause of section nine of said Act of March 27, 1874, entitled '‘An Act to revise the law in relation to the Illinois and Michigan Canal and for the improvement of the Illinois and Little Wabash Rivers,” the power and authority to cause suits to be commenced and prosecuted against persons trespassing upon canal lands belonging to the State of Illi- nois is vested in the Canal Commissioners of the Illinois and Michigan Canal, and said bill does not show that it is exhibited by said Attorney General by or with the authority or consent of said Canal Commissioners, but, on the contrary thereof, 95 shows said bill is not exhibited with their authority, and this defendant, as to so much and such parts of said bill as charge that this defendant is a trespasser upon the canal lands of the State, avers that the Attorney General of the State of Illinois has no lawful authority to exhibit said bill either in the name of the People of the State of Illinois upon the relation of Charles S. Deneen, Governor thereof, or otherwise; and this defendant prays the same benefit of this defense as if it had pleaded or de- murred to such parts of said bill upon that ground. This defendant further avers that by the eiglith section of said Act of March 27, 1874, revising the law in relation to the Illinois and Michigan Canal, etc., said Canal Commissioners are given the control and management of the Illinois and Michigan Canal, in- cluding its feeders, basins and appurtenances and the property thereto belonging and that by the eighth clause of said section 8 there is vested in the Canal Commissioners of the Illinois and Michigan Canal full power and authority to lease canal lands or lots owned by the State, to sell and convey any canal lands or lots owned by the State, whenever in their judgment the interest of the State would be promoted thereby, and by section 3 of said Act it is provided that suit may be prosecuted by them in the name of "The Canal Commissioners”; and defendant avers that if the flowage contract and lease, dated the 2nd day of Septem- ber, 1904, Exhibits A and B, and the contract of August 8, 1905, Exhibit C, and the deed of January 6, 1905, Exhibit J, lo said bill, or any or either of them, are void, the Canal Commis- sioners are the proper parties, and the only parties, who can main- tain an action to set aside said contracts, lease and deed, or any 96 or either of them, and that the Attorney General of the State of Illinois on the relation of Charles S. Deneen, the Governor of said State, or otherwise, has no power or authority to bring or maintain said action, but that any suit to set aside said con- tracts, leases and deeds can only be prosecuted by said Commis- sioners in the name of the Canal Commissioners of the Illinois and Michigan Canal; and said bill does not show that it is ex- hibited by or with the authority of said Canal Commissioners of the Illinois and Michigan Canal, but, on the contrary thereof, shows that it is not exhibited by or with their authority; and this defendant prays the same benefit of 4his defense as if it had specifically pleaded or demurred to so much and such parts of said bill as seek to have said contracts, leases and deeds declared null and void, for want of proper parties complainant, and for lack of power or authority in the said Attorney General to insti- tute or prosecute said suit. Defendant avers that as to so much of said bill as alleges that the said contracts, leases and deeds thereto attached, are null and void, the complainant has a complete and adequate remedy at law, and is not entitled to any relief from a court of equity and the defendant prays the same benefit of said defense as if it had pleaded or demurred to said bill of complaint therefor. This defendant avers that said bill shows that the land outside of the alleged meander lines of the Desplaines Diver in Section 25, Township 34 North, Kange 8, East of the Third Principal Meridian, in Grundy County, Illinois, and in the bed of said river in said Section 25; and also that part of Section 31, Township 97 34 North, Eange 9 East of the Third Principal Meri- dian, in Will County, Illinois, lying southwest and south- east of the Illinois and Michigan Canal and northeast and northwest of the Desplaines Diver (excepting a strip of land 90 feet in width on the southerly side of said canal) are in the posses- sion of this defendant under bona fide claim of title thereto de- duced from the State of Illinois, and defendant avers that so much of said bill as alleges that the title to said lands is in the State of Illinois, and that the defendant is a trespasser thereon, involves the question of the title to said lands, which may be tried and de- 8 :>> termined at law, and witli respeet to which the complainant has a complete and adequate remedy at law, and is not entitled to any relief from a court of equity, and as to which the defendant is en- titled to a trial by jury as guaranteed by the VII amendment to the Constitution of the United States and by Section 5 of Article II of the Constitution of the State of Illinois; and this defendant i)rays the same benefit of this defense as if it had pleaded or demurred to so much of said bill of complaint as seeks to adjudicate the ques- tion of the title to such lands. And this defendant further avers that by virtue of Section 35 of Chapter 45 of the Revised Statutes of the State of Illinois this de- fendant is entitled to have its claim of title determined in two sep- arate trials before two separate juries, and defendant prays the same benefit of this defense as if it had demurred or pleaded the same in bar to said bill of complaint. This defendant avers that said bill is an attempt to take the prop- erty of this defendant for public purposes, and that by virtue 98 of Section 14 of Article XI of the Constitution of Illinois, this defendant is entitled to have its compensation for the prop- erty sought to be taken, fixed by a trial by jury, and it prays the same benefit of this defense as if it had pleaded or demurred to said bill on that ground. Defendant further avers that said bill is multifarious in that it joins three separate and distinct causes of action : 1st. An alleged cause of action in which the state claims title to certain lands in fee in the capacity of private owner; j 2nd. An alleged cause of action in which the state in its sover- eign political capacity seeks to assert the rights of the public in an alleged public highway ; and 3rd. An alleged cause of action in which the state in its capa- city as private owner seeks to set aside certain contracts, deeds and leases which it claims were executed by the Canal Commission- ers of the State of Illinois without authority. And this defendant prays the same advantage of this answer as if it had demurred to said bill on the ground of multifarious- ness. This defendant further says that the deed, leases and contracts 84 mentioned in said bill, if voidable, could only be set aside upon restitution to this defendant of the consideration paid therefor by Harold F. Griswold, but the people do not in their said bill offer to return the said consideration. This defendant admits that, in the early history of our country a certain territory embracing what is now the States of Ohio, Indi- ana, Michigan and Wisconsin, was claimed to be owned by Vir- ginia. 99 Admits that by certain acts of the legislature of Virginia, and by its deed of cession, said territory was conveyed to the United States, as is alleged in the second paragraph of said bill, and that on, to-wit, the 13th day of July, 1787, the Congress of the United States then existing under the articles of Confederation, enacted the ordinance commonly known as the ordinance of 1787. Admits that Section 14 of said ordinance provided that the Articles therein should be considered as articles of compact be- tween the original states and the people and states in said territory, and should forever remain unalteraable, unless by common consent, and admits that Article IV provided that ‘Uhe navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever, free, * * * without any tax, impost or duty therefor,’’ and this defendant avers that it was also provided in said ordinance, in the fifth article thereof, that the states thereafter to be formed out of said territory should be admitted into the Congress of the United States ‘‘on an equal footing with the original states, in all respects whatever.” Admits that on the 18th day of May, 1796, Congress passed an act entitled ‘‘An act providing for the sale of lands of the United States in the Territory Northwest of the Kiver Ohio and above the mouth of the Kentucky Eiver,” and admits that Section 9 of said act provided that ‘‘all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways.” 100 But this defendant alleges that said act, by the i)rovisions thereof, did not relate to or affect the land in controversy in this bill, and that said act is wholly immaterial, irrelevant and 85 impertinent to the issues sought to be raised by said bill, and to the relief prayed therein, and defendant prays the same benefit of this answer as if it had excepted or demurred to such portion of said bill upon those grounds. Defendant admits the organization of Indiana Territory as al- leged in said bill. Defendant further admits that on the 26th day of March, 1804, Congress passed a statute entitled ^‘An act making ])rovision for the disposal of the public lands in the Indiana Territory and for other purposes,” and that by Section 6 thereof it was provided that ‘Cill the navigable rivers, creeks and waters within the Indiana Territory shall be deemed and remain public highways.” This defendant admits that Congress, by its act of February 3, 1809, entitled ‘C\n act for dividing the Indiana Territory into two separate Governments,” provided that that portion of Indiana Ter- iliory which now comprises the State of Illinois, for the purpose of temporary government, should constitute a separate territory to be called Illinois, and admits that it was provided in said act that there should be established within such territory a government in all respects similar to that provided by the ordinance of 1787, and that the inhabitants thereof should be entitled to and enjoy all the rights, privileges and advantages granted and secured to the people of the territory of the United States northwest of the River Ohio by said ordinance. 101 Defendant further admits that on the 18th of April, 1818, Congress enacted a statute to enable the people of Illinois to form a constitution and state government, and for the admis- sion of said state into the Union on an equal footing with the original states, and that said statute provided that said gov- ernment should be republican, and not repugnant to the ordinance of 1787. Defendant further admits that the people of the Illinois Ter- idtory adopted a constitution known as the constitution of 1818, the preamble of which recited that the people of the Illinois Territory, having the right of admission into the general gov- ernment as a member of the Union, consistent with the Consti- tution of the United States, the ordinance of Congress of 1787, and 8G the law of Congress approved April 18, 1818, entitled ‘‘An act to enable the people of the Illinois Territory to form a constitu- tion and state government, and for the admission of such state into the Union on an equal footing with the original states,” did agree to form themselves into a free and independent state. Defendant further admits that on December 3, 1818, the Con- gress adopted a resolution declaring the admission of the State of Illinois into the Union, and that said resolution declared, among other things, that the “constitution and state government, so formed, is repub- lican, and in conformity to the principles of the articles of compact between the original states and the people and the states in the Territory Northwest of the Eiver Ohio, passed on the 13th day of July, 1787.” 102 And this defendant avers that the second section of said resolution declared that the State of Illinois should be one of the United States of America “and admitted into the Union on an equal footing with the original states, in all respects what- ever,” and defendant avers that upon admission of the State of Illinois into the Union said ordinance of 1787 ceased to have, has not since had, and has not now, any operative force within her territory. This defendant further admits that the Elver Desplaines is situated in said territory, but denies that it flows a distance of 96 miles through the Counties of Lake, Cook, Will and Gfrundy in Illinois. This defendant further admits the allegations in paragraph III of said bill relating to the Kankakee Eiver, but this de- fendant alleges that the allegations concerning the Kankakee River are wholly immaterial, irrelevant and impertinent to the questions sought to be raised by said bill and the relief prayed thereby, and defendant prays the same benefit of this answer as if it had pleaded or demurred thereto upon such grounds. Defendant admits that the Desplaines River is wholly within the territory originally comprising what was known as the North- west Territory, but denies that said river is subject to the pro- visions of the acts of Congress set forth in the bill. Further answering, this defendant denies that it is shown by 87 the history of tlie explorations and discoveries of the territory in what is now the northern part of Illinois, or otherwise, that at the time of the ex])lorations and discoveries, or at any other time, the Desplaines liiver was navigable from a point near 103 where is now situated the City of (Chicago, or from any other point, to the mouth of said' Desplaines in what is now Grundy County, or to any other j)oint; and this defendant fur- ther denies that by the same history, dr otherwise, it is shown that the portion of the Desplaines Kiver last above mentioned was used in the early period of tlie State of Illinois as a highway for commercial purposes, and denies that commerce was car- ried on over said river, and denies that connection was made with the Chicago Eiver by a short portage between the two rivers near the site of what is now the City of Chicago, and denies that it was in use as a highway of commerce leading from Lake Michigan and the waters emptying into the St. Lawrence, on the one hand, to the Illinois Kiver, and the waters of the Mississippi on the other hand, thenceforward from the time of said first use, or from any time, up to and at the time when the said ordinance of 1787 and the several acts of Congress were respectively enacted. This defendant further answering denies that the State of Il- linois by and through its legislature and in obedience to the sev- eral acts of Congress set forth in said bill, or otherwise, assumed or took charge of the said Desplaines River, but admits that the State of Illinois did by a certain act mentioned in said bill, purport to authorize the building of a toll bridge across the Desplaines River on the northeast quarter of section 11, township 39 north, range 12, east of the third principal meridian, and the southeast quarter of section 2 in said town and range, but denies that said act authorized the construction of two bridges, and avers that 104 said act was not passed by virtue of or as a recognition of, any power of the state over said river, but merely to confer upon the persons therein mentioned the franchise to collect toll for traffic over such bridge, and avers that the place where said bridge was so authorized to be located, and was located, was not in that part of the river involved in this case, but was near the Village of River Forest in Cook County on that part of said Des- plaines River which was declared navigable by the Legislature of 88 Illinois by its act of February 28, 1839, entitled ‘‘An act declaring the Desplaines River a navigable stream.’’ And admits that afterwards the legislature of the State of Illi- nois passed an act entitled “An act to amend the several laws in relation to the Illinois & Michigan Canal,” in force February 26, 1839, but denies that sub-section 9 of section 2 thereof provided “that no stream of water passing through the canal lands sKall pass, by the sale, so as to deprive the state from the use of such water, if necessary to supply the canal, without charge for the same.” And denies that sub-section 11 of said act provided that “lands situated upon streams which have been meandered by the surveys of public lands by the United States shall be considered as bounded by the lines of those surveys and not by the streams,” but defendant avers that it was provided in section 2 of said act that in all sales of lands and lots under the provisions of said act certain conditions should be annexed, and should compose a part of the contract, which conditions included the conditions set forth in sub-sections 9 and 11 of said section 2 above quoted. And defendant avers that said bill does not allege that the use of any of the water of any stream passing through the lands de- scribed in said bill is necessary for the use of such canal; but 105 defendant alleges that on the contrary thereof the use of such water is not necessary to supply the said canal, and that the said Canal Commissioners do not need or desire said waters for canal purposes ; and defendant avers that if the use of such water was necessary to supply the canal, the Canal Commissioners would be the proper parties to take such steps as might be necessary to obtain such water, and that the people of the State of Illinois by their Attorney General, upon the relation of Charles S. Deneen, their Governor, or otherwise, have no authority to bring or main- tain any suit for the purpose of acquiring the waters of such streams for such purposes or otherwise. And defendant denies that the lands of the Desplaines River were meandered by the survey of the United States. Defendant avers that section 2 of said act of February 26, 1839, and sub-sections 9 and 11 of section 2, by the express terms there- 89 of, only apply to sales by the Canal Commissioners of lands and lots theretofore authorized to be sold. And this defendant avers that by the provisions of an act of the Legislature of the State of Illinois passed and in force February 21, 1843, entitled ^‘An act to provide for the completion of the Illinois and Michigan Canal, and for the payment of tlie canal debt,” granting to the Board of Trustees of the Illinois and Michi- gan Canal, the canal and canal lands, it was provided in section 18 thereof, that when said act should go into effect, so much of the acts thertofore passed by the Legislature of said State in relation to the Illinois and Michigan Canal, and the canal lands and 106 property, as conflicted with the provisions of that act, were thereby repealed; and this defendant avers that said sub-sec- tions 9 and 11 of section 2 of the said act of 1839 were in conflict with the provisions of said act of February 21, 1843, and were thereby repealed. And this defendant avers that by section 13 of said act of Febru- ary 21, 1843, it was provided that sales of lands should be made in the manner prescribed in the act of the 9th of January, 1836, and this defendant avers that no such provisions as were contained in sub-sections 9 and 11 of section 2 of the act of 1839 were con- tained in said act of 1836. This defendant further answering, admits that the Legislature of Illinois, by an act approved and in force February 28, 1839, de- clared the Desplaines River from the point where it most nearly connects itself with the Illinois and Michigan Canal, to its source within the boundaries of said State, a navigable stream, and de- clared that it should be deemed and held a public highway and should be and remain, free, open and unobstructed, from said point of connection with said canal to its utmost limits within said state for the passage of all boats and water-craft of every description. And this defendant avers that said river was not in fact navi- gable through the course described, or any portion thereof, and denies that the Legislature of said State could by its enactment impart to said stream the character of navigability which it lacked before the passage of said act; and defendant avers that said declaration was a recognition by the Legislature of the State of 90 Illinois tliat said Desplaines Biver from tlie point where said 107 river most nearly connects itself with said canal to its mouth was not navigable and defendant avers that the point where it is constructing its said dam is in that part of said river. And this defendant, further answering, admits that the Legis- lature of the State of Illinois, by act of March 3, 1815, authorized Stephen Forbes to construct a dam across the Desplaines Biver in Cook County on the southwest quarter of section 36, township 39 north, range 12 east, and on the northeast quarter of section 2, township 38 north, range 12, east, in Cook County, Illinois; and that said statute contained the proviso : ^‘That this act shall not operate to prevent the State from improving said river by dams or from using the water in said river for the Illinois and Michigan Canal at any time here- after, or for any other j)urpose’’; and this defendant alleges on information and belief that said Stephen Forbes did, pursuant to this act, and on or about the year 1866, construct a dam across said Desplaines Biver on sec- tion 2, in township 38 north of range 12, east, and section 35, town- ship 39 north of range 12 east, without any provision therein for the passage of boats, and he and his grantees and successors in title or interest have maintained said dam ever since, without any provision therein for the passage of boats, and that no boats ever could or did pass said dam, from the date of the construction thereof down to the present time; and this defendant alleges that the place where said dam was authorized to be constructed, and was so constructed, was in that part of said Desplaines Biver which had theretofore been declared a navigable stream by the Legis- lature of Illinois; and that said act, authorizing the construction of said dam by said Stephen Forbes, and the construction of said dam were inconsistent with the use of said stream for the pur- poses of navigation, and that the said dam so constructed by 108 said Forbes would have completely prevented the navigation of said stream if said stream had in fact been navigable. This defendant further admits that the Legislature of the State of Illinois, by its certain law, entitled ‘LDi act authorizing the building of a bridge and road in township 36 north, range 10 east, in Will County,” approved and in force February 12, 1849, author- 91 ized the construction of a l)ridge over the Des])laines Kiver at Lockport in Will County, hut this defendant avers that said act of tlie legislature authorizing the construction of said bridge is inconsistent with the use of said stream as a navigable stream, and defendant avers that the olrject of said act was to provide for the submission to the voters of said township d(i of the (juestion of levying a tax for the purpose of improving the road from the canal bridge in the town of Lockport to some suitable point on the opposite blutf and constructing a bridge across said stream at Lockport upon said road, and not for the pur})ose of authoriz- ing the construction of a bridge over a navigable stream. This defendant further answering, admits that the Legislature of the State of Illinois, by its certain act entitled “An act to create Sanitary Districts, and to remove obstructions in the Desplaines and Illinois Rivers,” approved May 29, 1889, in force July ], 1889, provided as is set out in said bill, and admits that section 23 of said act provided that said act should not be construed to author- ize the injury or destruction of existing wmter-power rights. And this defendant avers that the water-power rights which' are involved in this cause were in existence at the date of the 109 ])assage of said act and have since been acquired by this de- fendant, and that said act not only does not furnish the com- plainant any right to injure or destroy said right, but, on the con- trary thereof, expressly prohibits the injury or destruction there- of. Defendant further admits that it was provided in section 24 of said last mentioned act, that “whenever the general government shall improve the Desplaines and Illinois Rivers for navigation, to connect with this channel, said general government shall have full control over the same for navigation purposes.” And this defendant avers tluit said section 24 is a recognition by the Legislature of the State of Illinois that the Desplaines River is not a navigable stream. This defendant further admits that the Legislature of the State of Illinois, on May 14, 1903, enacted a certain statute entitled “An act in relation to the Sanitary District of Chicago,” etc., as is al- leged in paragraph IV of said bill, but this defendant avers that 92 said act of May 14, 1903, is wholly irrelevant, immaterial and im- l)ertinent, and shows no right, title or interest on the part of the relator, or the State of Illinois, or the people thereof, in or to the subject matter of said bill, or the relief prayed therein, and de- fendant prays the same benefit of this answer as if it had demurred therefor. This defendant further answering, admits the organization of the Sanitary District known a^ the Sanitary District of Chicago, and the construction of the channel as alleged in paragraph IV of said bill, but alleges that said fact is wlioly immaterial, irrelevant and impertinent, and prays the same advantage of this answer as if it had demurred therefor. 110 Defendant admits that afterwards the State of Ilinois enact- ed a certain statute, approved December 6, 1907, and entitled ‘‘A bill for an act recognizing the Desplaines and Illinois Eivers as navigable streams, and to prevent obstructions being placed therein, and remove obstructions therein now existing.” And that setcion 1 of said act provided: ”Be it enacted by the people of the State of Illinois repre- sented in the General Assembly: That the Des Plianes and Illinois Rivers throughout their courses from and below the water-power plant of the main channel of the Sanitary Dis- trict of Chicago in the township of Lockport, at or near Lock- port, in the County of Will, are hereby recognized as and are hereby declared to be navigable streams; and it is made the special duty of the governor and of the attorney general to prevent the erection of any structure in or accross said streams without explicit authority from the general assembly; and the governor and attorney general are hereby authorized and di- rected to take the necessary legal action or actions to remove all and every obstruction now existing in said rivers, that in any wise interferes with the intent and purpose of this act,” But this defendant alleges that so much of said act as declares the rivers mentioned therein to be navigable streams, is uncon- stitutional and of no effect, inasmuch as the power to adjudge and declare the navigability of streams is vested exclusively in the judiciary; and the defendant further alleges that said act is un- constitutional in that: 1st. The body of said act is broader than the title thereof; 2nd. It confers upon the xVttorney General and Governor of the state of Illinois judicial powers, to wit, the determination of what obstructions interfere with the intent and purpose of said act; 3rd. It deprives this defendant of its i)i*operty without due process of law, in violation of the 14th amendment to the Consti- tution of the United States and Section 2 of Article II of the Con- stitution of Illinois; 4th. It denies to this defendant the equal protection of the 111 laws in violation of the 14th amendment to the Constitution of the United States; 5th. It is a taking of the private property of this defendant without just compensation, in violation of Section 13 of Article II of the Constitution of Illinois; 6th. It is a special law laying out or o])ening a highway in vio- lation of Section 22 of Article IV of the Constitution of Illinois. 7th. It is a special law affecting only property in and along the Desplaines Biver and not affecting other property similarly situated upon other streams, and is in violation of Section 22 of Article IV of the Constitution of Illinois. This defendant admits that Charles S. Deneen is the Governor referred to in said statute, but denies that he, by virtue and reason of said statute and the direction therein contained, or by virtue of his office as Governor and his constitutional duty to take care that the laws be faithfully executed, or otherwise, has a special, or any, interest in the matters therein set forth. Defendant denies that the Desplaines Biver has from the time when said ordinance of 1787 was passed, or from any other time, unto the present time or unto any other time, formed in its or- dinary condition and by itself to the extent of its course, or other- wise, from the point of said alleged portage and connection with the Chicago Biver, or from any other point, to its mouth in Grundy County, or to any point or extent, a continued highway with water in sufficient volume and of sufficient depth to afford a channel for navigable and commercial purposes. 112 This defendant denies that the said Desplaines Biver from near the City of Chicago to the mouth of said river in Grundy County, or from any point to any other point, has been from the earliest knowledge of said river until the present time, or at any 94 time, ill law or in fact a navigable river, and denies that tlie sev- eral acts of the Legislature recited in said bill of complaint show the fact so to be, and denies that it is a fact, that it has been, or is the policy of the State to hold and maintain said Desplaines Liver to be a navigable river, and denies that said river is sub- ject to the provisions of the several acts of Congress set forth in said bill, and denies that by reason of said acts the said Desplaines River has been, or still continues to be, a highway of commerce, or that it is preserved for the use of the people of the State of Illinois, or the people of all the States of the United States, as a public highway; denies that it has not been alienated, and de- nies that the people of the State of Illinois have an easement over said river as a public highway for commerce, or otherwise, or that said river or the bed and waters thereof are permanently, or other- wise, impressed or burdened with said alleged easement or with a public right or public use of navigation, or otherwise, but this defendant alleges that on the contrary thereof there has never at any time been any navigation on said river of any kind or char- acter and that said stream from its source to its mouth through- out its entire course is in fact incapable of being navigated. Defendant avers that the said Desplaines River in its original or natural state or condition had not sufficient water for more than fifteen days in the year to float a canoe, and was not navigable 113 in fact and was not capable of being navigated for purposes of commerce; that there never has been any navigation of said river for useful or commercial purposes; that from the point where the said river crosses the state line between Illinois and Vriscon- sin, to the mouth of the stream said stream is a series of pools and shallows, and more nearly resenilhes a brook or rivulet than a river. Defendant further avers that from Lockport to the mouth of the Desplaines River, a distance of about 18 miles, there is a fall of 90 feet, an average of 5 feet per mile; that approximately one- half the distance is composed of rapids and riffles; that between Lockport and Brandon’s bridge, a distance of 7 miles, there is a fall of 34 feet, or about 4.6 feet per mile, and that between Jack- son street and ^McDonough street, in the City of Joliet, a distance of 5,000 feet, there is a fall of 9 feet, — an average of 1.8 feet per thousand feet or over 9.5 feet per mile; and from McDonough street to Brandon’s bridge, a distance of 2,000 feet, tliere is a fall of 3.75 feet or 9.9 feet per mile, and that along Treat’s island, for a distance of 2,000 feet, there is a fall of 5.5 feet, or over 14.52 feet per mile, and that below that point, at a point called Smith’s bridge, in a distance of 3,000 feet, there is a fall of 2 feet, or 7.92 feet per mile, and that at Dresden Heights, where the dam of this defendant is being constrncted, in a distance of 2,000 feet, there is a fall of 3.2 feet or 8.44 feet per mile; that from Jackson street, in the City of Joliet, to Brandon’s road, a little over 2 miles, in the first 5,000 feet there is a fall of 9 feet, in the next 2,000 feet there is a fall of 3.75 feet; in the next 2,000 feet there is a fall 114 of 5.5 feet, and in the next 3,000 feet there is a fall of 2 feet, making, in a distance of 12,000 feet, 20.25 feet fall, or an aver- age of 8.91 feet per mile. And defendant further avers that during times of freshets or high water which usually last only for very short periods varying from one day to two weeks, the current over said slopes is so swift that no boats could descend the river except at imminent peril to life and property, and that it would be wholly impossible for boats of any description carrying merchandise or otherwise, to ascend such river at such times. Defendant avers that various dams and bridges have been erected over said stream as hereinafter set out, all of which were con- structed without legislative authority. That in 1833 a dam known as Beard’s Dam was constructed across said Desplaines Biver near the mouth thereof, in Section 25, Township 34 North, Range 8, East of the Third Principal Meredian, in Grundy County, at sul)stantially the same place where defendant is constructing its dam, without any provision therein for the passage of boats, and that said dam was maintained at said location for many years without any provision therein for the passage of boats of any kind or size, and that in fact no boats ever could or did pass through, over or around said dam. That in 1835, or prior thereto, there were dams located across each channel of said Desplaines River in section 11, township 34 96 north, range 9, east of the third principal meridian and that said dams remained in said river many years. And this defendant avers that said two dams last above men- tioned were located upon odd-numbered sections, through which sections the state now claims that the shore and the bed of said stream were reserved from sale; and defendant avers that 115 the said dams were constructed by the owners of the lands ad- joining said stream upon either side, and were so constructed as an exercise of the right of ownership and dominion of and over the shores of said stream and the land in the bed thereof. That in 1839 there was a dam built across the Desplaines River near what is now McDonough street in the City of Joliet, which is sometimes called the Adam dam and sometimes Malcom’s dam, and that said dam remained in said river from said date until 1898 when it was removed by the Sanitary District of Chi- cago upon its paying as damages therefor a sum upwards of $80,000. That in the summer and fall of 1833 there was a dam built entirely across the river just south of what is now Cass street, in the City of Joliet, which said dam remained in said river until 1811, when it was removed by the State of Illinois upon its paying as damages therefor the sum of $17,655. And defendant avers that said dam was constructed in said stream by the owner of the land abutting upon both sides of said stream and was so constructed by him in the exercise of dominion and ownership over the land abutting upon said stream and in the bed thereof ; and defendant avers that if said Desplaines River was at the time of the removing of said dam a navigable stream, and the said dam was an obstruction to the navigation thereof, the said dam was in said stream without right or au- thority, and that the state could have removed said dam as a ])urpresture, without the payment of any damages therefor; and defendant avers that the action of the state in paying said dam- ages was an admission that said stream was not navigable and that said dam was lawfully in said stream. 116 That in 1833 a dam known as Norman’s dam, opposite where the state penitentiary is now located, was built across one channel of the Desplaines River. 97 That prior to 1839 there was a dam known as Daggett’s dam bniit entirely across the river at Lockport. That prior to 1847 there was a dam constructed across the Desplaines River in Lake Comity, Illinois, extending entirely cl cross the river. And this defendant avers that there were no provisions in any of said dams for the passage of boats, and that in fact no boats could or ever did pass any or either of said dams. This defendant further avers that for many years there were no bridges across the Desplaines River, but that the river was forded at many points, and that afterwards bridges were estab- lished and are now located at tlie following points: Smith’s bridge in section 21, township 34 north, range 9, east of the third principal meridian; The bridge known as the Millsdale bridge, located in section 11, township 34 north, range 9, east of the third principal me- ridian, near Millsdale in Will County, and that said bridge and the abutments thereof were constructed upon and over the shore and bed of the stream as an exercise of ownership and dominion over said land. The bridge now known as Brandon’s bridge, located in section 30, township 35 north, range 10, east of the 3rd P. M. ; Six bridges in the City of Joliet: one known as the McDonough street bridge, crossing the river at McDonough street, in Joliet; the Chicago, Rock Island & Pacific IP. R. Co.’s bridge just 117 north of McDonough street; the bridge across the river at eJefferson street; one at Cass street; one at Jackson street, and one at Ruby street in Joliet. That there is also a bridge across the river in the township of Lockport, on the Lockport highway. And this defendant avers that all of these bridges above men- tioned are fixed bridges and have no provision for the passage of boats, and that boats cannot pass said bridges or any or either of them. This defendant further avers that no legislative permits were ever granted by the State for the erection of any of the dams 98 hereinabove enumerated, or for the location of any of the bridges hereinabove enumerated. That in 1846 the State of Illinois completed the dam known as dam No. 1, entirely across the said Desplaines River, forming what is known as the Upper Basin of the Illinois and Michigan Canal, which dam is now in existence. And that in 1841 the State of Illinois built the dam known as dam No. 2 in the vicinity of what is now Jefferson street, Joliet, extending entirely across the said Desplaines River and forming the pool known as the Lower Basin of the Illinois and Michigan Canal ; that said dam No. 2 remained in said river from 1841 until 1899, when it was removed by the Sanitary District of Chicago by and with the consent of the Canal Commissioners. This defendant avers that by stipulation filed in the case of Raven v. The Board of Trustees of the Illinois and Michigan Canal in the Circuit Court of Will County, tried at the October term, 1848, of that court, it was admitted by the Canal Trustees that the Desplaines River was not navigable in fact, although 118 a portion of it had been declared to be so by act of the Legis- lature. Defendant avers that in a proceeding brought in the Circuit Court of Will County, Illinois, by the Sanitary District of Chi- cago against William J. Adams, the dam hereinabove referred to as the Haven dam, together with the water-power rights con- nected therewith, was taken by said Sanitary District by virtue of the Eminent Domain Law of the State of Illinois, and the said Circuit Court in said proceedings adjudged and decreed that the defendants in said case had a valuable property right in the said dam, and the water-power thereby created, and awarded said defendants a large sum as compensation therefor, and for other property connected therewith, and that said case was, on appeal, affirmed in the Supreme Court of Illinois; and this defendant avers that said judgment of the said Circuit Court and said af- firmance in the Supreme Court were in effect a finding that said dam was lawfully in said stream, and that no easement of navi- gation or otherwise existed therein. This defendant admits that by act of Congress approved March 2nd, 1827, there was granted to the State of Illinois, every al- ternate section in a strip of land ten miles wide along the line of the Illinois and Michigan Canal ‘‘for the iDurpose of aiding the opening of a canal to connect the waters of the Illinois Iliver with those of Lake Michigan,” as is alleged in paragraph V of said bill, and admits that among the lands thus conveyed by Con- gress, was section 25, in Township 34 north, range 8, east of the third principal meridian, in Grundy County, Illinois. 119 This defendant admits that the Desplaines and Kankakee Rivers unite and form the Illinois River in the southeast quarter of said section 25, but denies that by the survey of public lands by the United States said Desplaines River was meandered, and denies that the purchasers from the State of Illi- nois of lands in said section 25 or in other similarly situated land with reference to the Desplaines River, did not take, or did not claim to take, under their several purchases, that portion of said lands lying between the alleged meander line of the Des- plaines River and the waters of said river, and denies that said land between said alleged meander line and the waters of said river have never been used by any individual under any claim of authority or right vested in the purchasers of said lands from the State, save and except as claimed by the defendant. Denies that the land lying between the alleged meander line of the Desplaines River and the waters of said river in the south- east quarter of said section 25, together with the bed of the stream of the said Desplaines River in said quarter section of land last above described or in other lands similarly situated with reference to the Desplaines River, or either or any of such lands, have not passed by purchase from the State of Illinois, and denies that the same, and each and every or any part thereof, is owned by the State of Illinois, or held by the State for the use and benefit of the people of the State or the people of the United States as a public highway for commerce, or otherwise. But, on the contrary thereof, this defendant alleges that the purchasers from the Board of Trustees of the Illinois and 120 Michigan Canal of lands donated to the State by the United States for the purpose of aiding in the opening of a canal to connect the waters of the Illinois River with those of Lake 100 Michigan, did by virtue of their several deeds and purchases, acquire all the right, title and interest of the State in and to all of the land described in tlieir respective deeds, including the land betwee^the alleged meander lines and the waters of streams run- ning through said lands, and in the beds of said streams, and have always claimed title thereto, and that their title to the lands between the alleged meander lines and the waters of said streams and in the beds of said streams have always been recog- nized, and that the lands between said alleged meander lines and the banks of said streams have been used and cultivated by the purchasers of the lands through which said streams pass down to the hanks of such streams, without reference to any alleged meander lines, from the dates of their respective purchases to the present time. And this defendant admits that the trustees of the Illinois and Michigan Canal executed and delivered to one Charles E. Boyer, a deed bearing date the 22nd day of October, 1860, for the south fraction of the northwest quarter and the north frac- tion of the southeast quarter and the north fraction of the north- west quarter, and the south fraction of the southeast quarter of said section 25, in township 34 north, of range 8, east of the third principal meridian, excepting and reserving so much of said tract as was occupied by the canal and its waters, and a strip 90 feet wide on either side of said canal, said tract containing 19B.62 acres and being a portion of the land granted by the United States to the. State of Illinois to aid said State in open- 121 ing a canal to connect the waters of the Illinois River with those of Lake Michigan, and by said State granted to said Board of Trustees of the Illinois and Michigan Canal for the purposes set forth in the act of said State, of February 21st, 1843. And this defendant denies that no part of the land in the north- west quarter and in the southeast quarter of said section 25, situated outside of the alleged meander line of the Desplaines River, were conveyed by said deed of the Board of Canal Trus- tees to said Charles E. Boyer, and denies that the same remained the property of the State of Illinois ; but, on the contrary thereof, this defendant avers that said deed from the Board of Trustees to said Charles E. Boyer was a conveyance by said trustees to 101 said Charles E. Boyer of all the lands belonging to the State of Illinois in the subdivisions therein described, including the land situated outside of said alleged meander line, and the land lying in the bed of the stream of the Desplaines Elver, and that the title to all of said lands passed to the said Boyer by virtue of said conveyance. This defendant admits, that its claim to said premises so situ- ated outside of the alleged meander lines of the Desplaines Elver in said section 25, is based upon mesne conveyances from the said Charles E. Boyer, and the several leases and contracts attached to said bill. Defendant admits that on March 2nd, 1827, Congress passed an act entitled ‘‘An act to grant a quantity of land to the State of Illinois for the purpose of aiding in opening a canal to con- nect the yaters of the Illinois Eiver with those of Lake 122 Michigan,” as alleged in said bill, and that said act provided that “the lands shall be subject to the disposal of the Legis- lature of the said State for the purpose aforesaid and no other.” This defendant admits that by the act of March 2nd, 1827, Con- gress granted by implication the right of way for the construction of said canal through the sections of public land which were not donated to the State, and that the said grant of right of way by implication extended to the land necessary to be used for the canal of the width contemplated. This defendant further admits that afterwards such proceed- ings were had pursuant to law and said statute, that the route and location of the canal were duly surveyed and laid out, and the odd-numbered sections of land upon the survey of the same duly selected by the commissioner of the land office, as alleged in said bill. Denies that Artemus J. Mathewson, under the authority and direction of the Canal Trustees, surveyed and marked lines of a 90-foot strip on each side of the canal as finally located and con- structed, from one end of said canal to the other, or that he filed in the office of said Board of Trustees maps and profiles of said survey and of said 90-foot strip; and denies that he had any law- ful authority so to do. 102 Admits that a strip of land ninety feet in width on each side of the canal as aforesaid, was reserved from the sale by the Canal Commissioners and the Canal Trustees in many of the sales of canal lands in odd-nnmbered sections, and that the title thereto remains in the State of Illinois, but denies that said strip, together with the lands necessary for the right of way 123 through the alternate even-numbered sections of said land through which said canal is constructed, constitute integral parts of the canal, or that they are necessary for its preservation and use, or that they are by law preserved and protected against alienation, but on the contrary thereof avers that said Canal Com- missioners are expressly authorized by law to sell and convey any portion of said 90-foot strip excepting such portions thereof as are now utilized in connection with the use of water power upon the said canal or the sale of Avhich would prevent or interfere with the proper use and operation of the said canal as a water- way, but admits that the 90-foot strip was expressly reseiwed from sale in said deed of the trustees of the Illinois and Michi- gan Canal to said Boyer. Defendant believes that the exhibits attached to said bill are substantially accurate copies of the originals of which they pur- ])ort to be copies, but it does not admit that they are true copies. This defendant admits that the Canal Commissioners of the State of Illinois entered into a certain contract bearing date the 2nd day of September, 1904, with one Harold F. Griswold, a pur- ported copy of which is attached to said bill and marked Exhibit A, and admits that the said contract was assigned by the said Harold F. Griswold to this defendant. This defendant further admits that the said Canal Commis- sioners entered into a contract of lease with one Harold F. Gris- Avold as of the date of Septemebr 2, 1904, copy of which is at- tached to said bill and marked Exhibit B, and admits that said Harold F. Griswold assigned the said contract to this defend- ant. 124 This defendant further admits that the Canal Commis- sioners entered into another certain contract Avith Hai'old F. Griswold, as of the date of the 8th of August, 1905, a purported 103 copy of which is attached to said bill and marked Exhibit C, and admits that said Harold F. Griswold assigned the said contract to this defendant. This defendant admits that said Canal Commissioners made an application to the Governor of the State of Illinois for his consent to the sale of certain lands, which application bears date the 11th day of June, 1904, a purported copy of which is attached to said bill and marked Exhibit D, and that a purported copy of the approval of said application by the Governor as of the 14th day of June, 1904, is attached to said bill, marked Exhibit E. This defendant admits that a certain notice of proposed sale was inserted in the Lockport ‘‘Phoenix Advertiser,’’ as is al- leged in said information, but that the sale so advertised to be made was adjourned and never thereafter resumed. Defendant further admits that after the 2nd day of August, and under date of September 2, 1904, the Canal Commissioners entered into the agreement and lease hereinabove mentioned re- spectively as Exhibits A and B, and that afterwards, and under date of November 1, 1904, the Canal Commissioners of the State of Illinois made an application to the Governor for his consent to the sale of certain lands described in said application, a pur- ported copy of which is attached to the bill, marked Exhibit G, and that the approval of said application for sale by the 125 Governor was made in writing, a purported copy of which, bearing date the 2nd day of November, 1904, is attached to said bill, marked Exhibit H; that pursuant to said application and approval, notice of sale was inserted in the Lockport “Phoe- nix Advertiser,” as alleged in said bill. Defendant admits that pursuant to said application last above mentioned, and the approval of the Governor thereof, and of the advertisement in the Lockport Phoenix Advertiser last above men- tioned, the said Canal Commissioners sold the lands therein men- tioned, and executed a certain deed to Harold F. Griswold as of the date of January 5, 1905, a purported copy of which deed is attached to said bill marked Exhibit J, and admits that said Harold F. Griswold conveyed said premises so that by mesne con- veyance said premises passed to this defendant. 104 This defendant further admits that said Canal Commissioners entered into a contract of lease with Harold F. Griswold as of the date of December 2, 1904, a purported copy of which is at- tached to said bill and marked Exhibit K and made a part there- of, and that said lease was assigned by Griswold to this defend- ant. This defendant admits that by virtue of the several deeds, leases and contracts mentioned in said bill, and also by virtue of its ownership of the bed and shore of the Deseplaines Eiver, it claims a right to construct a dam across the Desplaines Eiver and across the lands adjacent thereto, and across the 90-foot strip of land, and immediately adjoining the water-way of said Illinois & Michigan Canal and up to the bank or towpath of 126 the said Illinois and Michigan Canal, and to construct said dam so as to flood the lands along the Desplaines Eiver for a distance of several miles above the location of said proposed dam, and on the southeast quarter of said section 25, but denies that said 90-foot strip of land is used for canal purposes, and avers that said 90-foot strip of land through said southeast quar- ter section has not heretofore been used for any purpose whatso- ever either by the Canal Commissioners or by any one pursuant to the authority granted by them, or otherwise, and that said land was swampy, unfit for cultivation, partially covered with water, and unproductive of revenue. This defendant further avers that during the year 1904, one Charles A. Munroe and associates acquired, in connection with the land purchased and leased from the Canal Commissioners under the various instruments from the said Canal Commissioners to Harold F. Griswold, referred to in said bill, by purchase from the owners thereof, some 1,800 acres of other lands, at an ex- penditure of upwards of $200,000, the ownership of which gave to said Munroe and associates the right to construct a dam at the mouth of the Desplaines Eiver with a crest at such a height as would back the level of the waters of the Desplaines Eiver to the level of the waters of I.ake Joliet, and defendant avers that at the time of the making of said leases, deeds and contracts, the said Canal Commissioners knew that the sai'd IMunroe and associates had ac(piired and were accpiiring a large amount of 105 other lands at a large expenditure of time and money, for the purpose of utilizing the same in connection with the lands so acquired from said Canal Commissioners, for the purpose of cre- ating water power. 127 Defendants avers that before the beginning of the construc- tion of its said dam and in order that said dam might be located at such a point as would contribute to a waterway, if one should ever be constructed in said stream, one Charles A. Mun- roe submitted the plans of said proposed dam to said War De- partment, of the United States, and requested that said Depart- ment would give some expression of opinion as to whether the plans submitted would be in harmony with the work of improver ment proposed by the United States Government, to-wit, the con- struction of a navigable waterway from Lockport, Illinois, to St. Louis, Missouri, via the Desplaines, Illinois and Mississippi Div- ers, and that thereupon the Chief of Engineers of the L^nited States Army referred the matter to Lieut. Col. W. H. Bixby, of the Corps of Engineers of the United States Army, in charge of the district in which said proposed work was to be constructed, to examine said plans and said proposed work and to report his recommendations thereon ; that thereupon the said Bixby reported to the Chief of Engineers of the United States Army as follows : ‘^United States Engineer Office, 508 Federal Building, Chicago, 111., March 27, 1906. Brig. Gen. A. Mackenzie, Chief of Engineers, U. S. Army, Washington, D. C. General : 1. In reply to Department letter (E. D. 58726) dated March 16, 1906, as to the proposed plans of a water power company for a dam across the Des Plaines Diver, 111., just 128 above its mouth, which have been verbally and informally presented to your office by the Hon. H. M. Snapp and the water-power representatives, I have herewith to submit re- port as follows: — 2. The dam in question is that proposed by Chas. A. Miin- roe, of Chicago, 111., as explained by his letter to this office under date of March 20, 1906, with inclosures (copies here- with — 2 letters, 3 blue-prints). (5 incls.) 3. The Des Plaines Diver, so far as now known to this office, has never yet been considered a navigable stream of 106 the United States. It is therefore apparently as yet subject only to such jurisdiction as applies to all other unnavigable streams and not subject to the provisions of Sections 9-13, Act of March 3, 1899, or to other similar U. S. legislation. 4. The agents of the water power company in question, informally claim to have secured possession of all the land on each hank of the river necessary to allow for construction of the dam and of its accessories, and to protect themselves from all future claims for over-flowage created thereby, so far as any existing known rights are concerned; and they likewise claim that there is no existing State law, or United States law which prohibits their legally going ahead with their proposed construction and that no special law is needed therefor. They admit, however, that in some minor matters, they still lack necessary authority from the local Board of Supervisors, to condemn certain properties which they still wish to acquire in order to facilitate or simplify their future work (such permission, however, not being absolutely essen- tial to such work) and they state that the Board of Super- visors are willing to grant such authority as soon as it is evident that the proposed power dam construction will not interfere with the future development of the river for navi- gation purposes. 5. The water power company agents likewise state that their object in bringing the matter up before the War De- partment at present, is to make evident that the proposed dam construction not only does not conflict with any existing U. S. law, but also will assist rather than injure the possible future navigation of the Desplaines and Illinois Eivers, should the improvement of such rivers ever be authorized by Congress in the manner proposed by the last Board Ee- port of August 26, 1905, upon the feasibility and cost of a navigable waterway from Lockport, 111., to St. Louis, Mo., via the DesPlaines, Illinois, and Mississippi Eivers (House Document No. 263, 59th Congress, 1st Session) ; and they desire to secure from the AVar Department some expression of opinion, informal or otherwise, so far as it can properly be given, that will allow them to assure all inquirers that the 4Var Department so understands the situation, and is mak- ing no objection to such prompt progress of the work as is necessary to a business enterprise of its magnitude and im- portance. 6. Paragraph 17 of the Board Eeport of August 26, 1905, above referred to, specially stated that the plan submitted by the Board was ^‘not designed to develop water power, but there will probably be no difficulty in modifying it so as to confirm to such development if those who are to benefit there- by will co-operate with the Government. They should pay 129 the cost of the dams, and the damage from flowage, which is no more than they would l)e compelled to do if the Govern- ment made no improvement.” The i)lans herewith sub- mitted by Mr. Munroe .show plainly a proposed co-operation such as that described in the above Board re])ort, offered in such manner as not only to pay the cost of this power dam, and to protect the United States against howage damage, but also to lessen by one the number of locks and dams nec- essary for future navigation and to otherwise save both time and money ($142,385 in first cost, and $4,000 annually there- after for maintenance and operation) to the United States, in case Congress should finally decide to undertake the im- provement covered by the August 26, 1905, Board report, or to otherwise make this river navigable in this neighborhood. All information, so far received by this office, appears to substantiate the statements of Mr. Munroe, ns described above; and I consider that his proposition should be en- couraged and that he should receive from the War Depart- ment whatever expression of favorable consideration may be proper and allowable under such circumstances. 7. I have carefully considered the question of this ])ower dam project and have talked it over at intervals witli Mr. Woermann, while he was Assistant Engineer in local charge of the Illinois Eiver survey under this office before he had been employed by Mr. Munroe, as well as since that time, and have discussed the matter also with Mr. Munroe; and I believe that the provisos of the next paragraph below are fair and advantageous to both sides, and will leave to the future only the question of regulating pool levels so as to avoid a conflict between depths of water needed for naviga- tion and heads of water needed for power purposes, and so as to divide up the river water between the two according to such rights as may exist when the river shall become a navi- gable water (which it appears not to be at present), and when the United States shall decide to give up the use of the canal and to assume the improvement of the river. Until such time, I do not see how the War Department can assume any definite jurisdiction of the Desplaines Eiver or make any definite demands upon any water-power company already organized for the use of this river. It is my present understanding that these provisos will be accepted by Mr. Munroe. 8. I have therefore to recommend that the Hon. H. M. Snapp and Mr. Charles A. Munroe be informed that the War Department will waive any and all objections which it may have to the progress of such water power dam construction as proposed by Mr. Munroe ’s letter of March 20, 1906, and its inclosures, provided that he, on the part of the power dam owners, agrees 130 (a) that he will construct and maintain in good repair,, just above the mouth of the Des Plaines Eiver, in location 108 as. approximately shown on the blue prints, a dam and spill- way sufficient to hold the water surface of its upper pool at a height equal to the present mean level of Lake Joliet (taken at 512.0 feet, Memphis datum) ; and later whenever Congress shall have ordered the improvement of the Des Plaines Kiver for navigation purposes, will raise this dam 3.0 feet higher giving pool level of 515.0 feet, Memphis datum) if the War Department shall so order; and will grant the United States the use of such pool so far as needed for navigration ; (b) that he will assume the cost of, and protect the United States from, claims for all flowage damages caused by this dam between its site and the north line of Section 11, Town- ship 34, Eange 9 East, which line is about 1.5 miles by river above the next higher lock and dam proposed by the Board report (i. e.. Lock No. 4 and Dam No. 2, at the foot of Treat’s Island) ; (c) that he will grant to the United States a strip of land at least 150 feet wide across the north end of this dam, to he so located between it and the tow path of the present Illi- nois and Michigan Canal, as to connect the present mid river above, to the same below, in the manner approximately indi- cated on the accompanying blue prints ; such strip to be used by the United States for the construction and maintenance of a boat lock, its necessary approaches, and other purposes of navigation; * (d) that he will do all the above, free of cost to the United States ; Provided, that the War Department will waive any and all objections which it may have to the progress of such water power dam construction. Very respectfully, W. H. Bixby, Lt. Col., Corps of Engineers.^* that thereupon the Chief of Engineers of the United States 131 Ai’iny concurred in said recommendation and reported the re- sult of his findings and his recommendations to the Secretary of War, and thereupon and on or about the 7th day of June, 1906, the IVar Department, by Pobert Shaw Oliver, Assistant Secretary of War, sent to said Charles A. Munroe, a letter reading as fol- lows : ^‘War Department, Washington, June 7, 1906. Sir — In re])ly to your letter of June 5, 1906, addressed to the War Department, in the matter of the construction by yourself and associates of a dam and spillway across the Desplaines Piver near its mouth, at the location and as shown on maps sub- KM) mitted, with your letter of Mareli 20, 1900, addressed to Lieu- tenant Colonel W. H. Bixby, Corx)s of Engineers, U. S. Army, I have the honor to advise you as follows: It is understood that yourself and associates are willing to comply with the following conditions, viz.: First. That the details of construction shall be such as to insure permanency and of sufficient ca])acity to hold the water surface of its upper pool at a height e(iual to the ])resent mean level of Lake Joliet (taken at 512.0 feet Memphis datum) ; and later whenever Congress shall have ordered the improvement of the Desi)laines River for navigation pur- poses, the dam shall be raised by you and your associates 3.0 feet higher (giving pool level of 515.0 feet, Memphis datum), if the War Department shall so order; the United States and the public to have the free use of such pool so far as needed for navigation purposes, and the use of water for power pur- poses shall be so limited that the level of the ])ool shall at no time be reduced below that ado])ted for navigation in the ])lans . of the United States for the slack-water improvement of the river. Second. That the United States shall be protected from claims for all flowage damage caused by the dam between its site and the north line of Section 11, Township 31, Range 9 East, which line is about 1.5 miles by river above the next higher lock and dam proposed by the board of engineers’ re- port {i. e., Lock No. 4 and dam No. 2 at the foot of Treat’s Island). Third. That there shall be conveyed to the United States free of cost a strip of land at least 150 feet wide across the north end of this dam, to be so located, between it and the tow 132 path of the present Illinois and Michigan canal, as to con- nect the present mid-river above to the same below in the manner approximately indicated on the accompanying blue prints; the right of the United States to enter upon and use such strip of land for the construction and maintenance of a boat lock, its necessary approaches, and for other purposes of navigation, if it so desires, without liability for damages re- sulting in any way from its operation in connection with con- struction or maintenance of said lock and appurtenant works to be duly guaranteed. If these conditions are complied with, in the opinion of the Chief of Engineers, U. S. Army, concurred in by this depart- ment, the work proposed is in general harmony with the work of improvement recommended by the Board of Engineers ap- pointed under authority of the River and Harbor Act of June 13, 1902 (32 Stat. L., 331, 364), in its report dated August 26, 1905, printed as House Document No. 263, 59th Congress, first session. no Inasmuch, however, as Congress has not as yet authorized the improvement of this river, this department does not deem it expedient to take further and definite action in the matter of approving the plans. Very respectfully, Eobert Shaw Oliver, Assistant Secretary of War. Mr. Charles A. Monroe, The Eookery, Chicago, Illinois.” And defendant avers that afterwards, to-wit, on or about the 15th day of December, 1906, this defendant acquired from the said Munroe and associates, all the lands and rights so acquired by them, including the leases, deeds and contracts from the said Canal Commissioners to said Griswold, set forth in said bill, and that at the time it so acquired the said lands and rights it paid full con- sideration therefor without any notice or knowledge of any claim that the said leases, contracts and deeds from the said Canal Com- missioners to the said Harold F. Griswold were invalid, and that at said time, and before the payment of the consideration 133 therefor, the said Canal Commissioners had knowledge that this defendant was so acquiring said lands and rights. This defendant furthers avers, and states the fact to be, that after said lands were so acquired by it, it immediately entered in and upon the work of constructing its dam at the mouth of said Desplaines Eiver, procured complete plans and drawings of the proposed work, and entered into a contract for the construction of said dam at a cost of upwards of $500,000, and entered into a contract for the purchase of hydraulic machinery to the amount of $145,000, upon which it has already paid the sum of $52,500, and has become liable for the balance thereof, and defendant avers that the State of Illinois, with knowledge that this defendant was pro- ceeding with the construction of its said dam at great expense relying upon the validity of said deeds, leases and contracts, hav- ing stood by and permitted this defendant to make large outlays of money and incur heavy liability in and about the construction of its said dam, without protest or notice that it claimed that said leases, contracts and deeds were invalid, is now estopped to claim that they are invalid ; but defendant denies that said several leases, deeds and contracts are ineffectual to confer any right to build or m maintain said dam, but avers tliat said leases, deeds and contracts confer upon this defendant, full right, power and authority to construct and maintain said dam. And defendant further avers tliat the eartlien portion of said dam vdiich occupies the space between the power-house and the Illinois and Michigan Canal, and which said space is reserved for the construction of a lock, has been entirely completed; that the space between said earthen dam and the Desplaines Kiver has been excavated to a depth of, to-wit, 20 feet, and that from the 134 north bank of said Desplaines Kiver to the center, a distance of 500 feet, the river has been enclosed in a coffer dam; that in connection with said work, the said contractor has erected some 17 buildings, and has, and had on the ground at the time the injunction was issued in this case, engines, derricks, cars, boats, stone, cement, lumber, and material, to the amount of $150,- 000 . And defendant avers that the plans upon which it was proceed- ing to construct its said dam at the time of the entering of the temporary injunction herein were the same plans which were so submitted to the War Department and defendant avers that it pro- poses and intends to construct its said dam in accordance there- with ; that it proposes to build its dam of such details of construc- tion as shall insure permanency and of sufficient capacity to hold the water surface of its upper pool at a height equal to the pres- ent mean level of Lake Joliet (taken at 512.0 feet Memphis datum) ; and that whenever Congress or the State of Illinois shall author- ize and undertake the improvement of the Desplaines Eiver for navigation purposes it proposes to comply with all the conditions specified in said letter to the end that its dam and works shall be in harmony with and will not obstruct such improvement. This defendant further answering denies that the General As- sembly of the State of Illinois, has, by resolution duly passed by the Senate, and concurred in by the House of Representatives, on the 16th day of October, 1907, a purported copy of which is attached to said bill, proposed the building of a deep waterway, commencing at the southern end of the Chicago Drainage 135 Canal and extending southwesterly along the line of the Des- plaines and Illinois Rivers in accordance with plans and speci- 112 fications formulated by the corps of engineers of the IT. S. Army under and by direction of a certain act of the Congress of the United States ; but avers that the General Assembly did by said resolution propose to submit to the electors of the State of Illi- nois a proposition to amend the Constitution of said State in the manner stated in said resolution, but defendant admits that in case a deep waterway is built in said Desplaines Eiver, locks and dams with special provisions for navigation, and securing and safe- guarding the passage of boats will necessarily be constructed across said deep waterway in the channel of the Desplaines Eiver at or near the location of the site of this defendant’s dam, and that such a dam would afford water power of great value; but denies that any water power which might be created thereby will be lost to the State of Illinois if defendant shall be permitted to construct the dam herein mentioned, but, on the contrary thereof, this de- fendant avers that the state has no water power or right or title thereto u]3on the said southeast quarter of section 25; but this de- fendant avers that the water power existing upon the southeast quarter of said section 25 belongs to this defendant, and that the legislature of the State of Illinois has no right, power or authority to create water power and no right, power or authority to take the property of this defendant for that purpose. And this defendant avers that the act of the legislature of the State of Illinois, passed on the 6th day of December, 1907, en- titled ‘AV bill for an act recognizing the Desplaines and Illinois Eivers as navigable streams and to prevent obstructions being placed therein, and to remove obstructions therein now exist- 136 ing,” and the joint resolution of the General Assembly, a pur- ported copy of which is attached to said bill and marked Ex- hibit L, is an attempt upon the part of the said state to take to it- self, without compensation to this defendant, the water power of this defendant, and that the resolution of the General Assembly hereinabove mentioned in so far as it attempts to provide for the construction of a deep water-way along the Desplaines Eiver and the creation of water power therein, is a violation of the rights of this defendant in and to the bed and shores of said stream in the southeast quarter of said Section 25, and is a taking of the private property of this defendant without due process of law in viola- 11 a tion of the XIV amendment to the Constitution of the United States and Section 13 of Article II of the Constitution of Illinois, and is special legislation in violation of Section 22 of Article 4 of the Constitution of Ilinois. This defendant further answering, avers that by the act of cession of the State of Virginia, of December 20, 1783, and the deed of cession of March 1, 1784, executed pursuant thereto, the State of Virginia did conve}^, transfer, assign and make over unto the United States for the benefit of the said states, Virignia in- clusive, all right, title and claim as well of soil as of jurisdiction, which the said Commonweath then had to the tenltory or tract of country within the limits of the Virginia charter, situated, lying and being to the northwest of the Kiver Ohio, to and for the uses and purposes, and on the conditions in said act recited, among which was the condition that the states formed out of said 137 territory should be republican states, and should be admitted members of the Federal Union, with the same rights of sov- ereignty, freedom and independence as the other states, and that the lands within the territory so ceded to the United States should l)e considered as a common fund for the use and l)enefit of such of the United States as had become members of the Confedera- tion or federal alliance of the said states, Virginia inclusive, ac- cording to their several respective proportions in the general charge and expenditure, and should be faithfully and hona fide dis- posed of for that purpose, and for no other use or purpose what- ever. And this defendant avers that the land in said Section 25 here- inabove described was among the lands so conveyed by the State of Virginia to the general government; and this defendant avers that by virtue of said act and deed of cession the general gov- ernment of the United States acquired and held all of the lands thereby conveyed, in trust, for the benefit of all the states of the United States, Virginia inclusive, according to their usual respect- ive proportions in the general charge and expenditure, and had no right or authority to use or convey said lands for any other use or purpose whatsoever. And this defendant avers that the United States, holding said lands in trust as aforesaid, did by its act of March 2, 1827, grant 114 to the State of Illinois, among other lands, Section 25 in Town- ship 34, Eange 8, East of the Third Principal Meridian, in what is now Grundy County, Illinois, for the purpose of aiding the said state in opening a canal to unite the waters of the Illinois Elver with those of Lake Michigan, and provided in said act that 138 the said lands should he subject to the disposal of the legis- lature of the state for that purpose, and no other. And this defendant avers that the state thereafter, by virtue of said act, held the said lands, including Section 25 aforesaid, in trust for the purposes therein expressed, and no other, and that the said state had no right or authority to divert the said Section 25, or any portion thereof, from the uses for which the same were granted by the United States and had no authority to retain, use or devote the bed of the Uesp] nines through said Section 25, or the lands bordering upon said stream within the alleged meander lines thereof, for any purpose other than the construction of said canal, and that the application of said lands to any purpose other than those upon which the grant was made, would be a violation of the trust uj^on which said lands were granted by the general government to said state, and would be a violation of the trust upon which the United States took and held said lands by virtue of the act and deed of cession of the State of Virginia above men- tioned. Defendant avers that in the year 1842, the State of Illinois, after having expended nearly $5,000,000 upon the construction of the Illi- nois & Michigan Canal, and finding the same far from completion; its treasury empty, the interest upon its bonds, and other indebted- ness, long past due, and unpaid; a large portion of the canal lands sold, and the proceeds expended in the construction of said canal, and a large indebtedness, in addition thereto, incurred in the con- struction of the same; and the value of the remaining canal lands entirely inadequate at their then value to complete the canal 139 at the estimated cost thereof, and no one willing to extend her further credit upon her own faith, — applied to some of the large holders of her canal bonds and indebtedness for a further loan for the purpose of completing the construction of said canal; and after considerable negotiations with various large holders of her bonds and indebtedness, some of those holders offered to sub- 115 scribe to a loan to the state to the amount of $1,600,000 for the 13urpose of completing said canal upon the condition that the state should convey to trustees for the benefit of the subscribers to said loan, all of her canal lands, town lots, water power, coal beds, stone quarries, and all of the canal property, together with all of the tolls that might be derived from transportation upon the canal, and, in addition thereto, that the state would at the next session of its legislature, adopt and establish a system of revenue by which pro- vision should be made for the prompt and continuous payment of part of the accruing interest upon the whole state debt, and should also provide for the gradual payment of the arrears of interest then due and of such arrears as should thereafter accrue from her then inability to pay the whole interest at its exact maturity; and thereafter, pursuant to said offer, the legislature of the State of Illinois, at its session in 1843, passed an act entitled ‘‘An act to provide for the completion of the Illinois & Michigan Canal and for the payment of the canal debt,” approved February 21, 1843, Section 1 of which provided that for the purpose of raising a fund for the completion of the Illinois & Michigan Canal, “the Gover- nor of this state, be, and is herel)y fully authorized and empow- ered to negotiate a loan solely on the credit and pledge of the 140 said canal, its tolls, revenues and lands” to be granted to trustees as thereinafter provided, of $1,600,000. And Section 10 of said act provided that “for the purpose of placing in the hands of trustees full and ample security for the payment of said loan authorized by this act, and the interest there- on, as well as for securing a preference in the payment of such canal bonds and other evidences of indebtedness issued by this state for the purpose of aiding in the construction of the Illinois & Michigan Canal, as may be owned by the subscribers to the said loan, the state does hereby irrevocably grant to the said Board of Trustees of the Illinois and Michigan Canal, the bed of said Illi- nios & Michigan Canal, and the land over which the same passes, including its banks, margins, towpaths, feeders, basins, right of way, locks, dams, water power, structures, stone excavated and stone and materials quarried, purchased, procured or collected for its construction; and all the property, right, title and interest of the state, of, in and to said canal, with all the hereditaments and 116 appurtenances thereunto belonging, or in any wise appertaining; and also all the remaining lands and lots belonging to said canal fund, or which hereafter may be given, granted, or donated by the general government to the state, to aid in the construction of the said canal, and the buildings and erections belonging to the state thereon situated ; the said Board of Trustees to have, hold, possess and enjoy the same as fully and absolutely, in all respects, as the state now can or hereafter could do, for the uses, purposes and trusts hereinafter mentioned.’’ And that by Section 20 of said act, the state solemnly pledged 141 its faith to supply, by future legislation, all such defects as might be found necessary to enable the said trustees to carry into full effect the fair and obvious intent of the act. And defendant avers that thereafter, and pursuant to said act, subscriptions were made to said loan in accordance with the said agreement to subscribe; that thereafter, and at its session in the year 1845, the legislature of the State of Illinois passed an act entitled ‘^An act supplemental to ‘an act to provide for the com- pletion of the Illinois & Michigan Canal, and for the payment of the canal debt,’ approved February 21, 1843,” approved March 1, 1845, Section 1 of which provided that after the contract for the loan of $1,600,000 as contemplated in the act entitled “An act to provide for the completion of the Illinois & Michigan Canal and for the payment of the canal debt ’ ’ should have been duly executed in all respects as was provided by the terms of the above men- tioned act as modified by the provisions of this act, and trustees were appointed as contemplated in said act, the Governor of said state should execute and deliver unto the said trustees a deed of trust of all the property mentioned in the 10th Section of said act of February 21, 1843, which said conveyance should include the lands and lots remaining unsold, donated by the United States to the State of Illinois to aid in the completion of the canal, to be held in trust as in the said act stipulated; and defendant avers that thereafter the Governor of the State of Illinois did execute and deliver a deed of trust as provided in said act. 142 And this defendant avers that by virtue of said act of the General Assembly of the State of Illinois passed February 21, 1843, and entitled “An act to provide for the completion of the 117 liliiiois & Michigan Canal and for the payment of the canal debt,” and said deed of trust said Board of Trustees of the Illinois & Michigan Canal acquired all the right, title and interest of the state in and to the lands in Section 25 hereinabove described, including the bed of the Desplaines Eiver in said section and the lands be- tween said alleged meander lines in said section, for the purpose of securing the payment of the loan authorized by said act to be made for the purpose of completing said canal, and were author- ized ])y said act to sell said lands at public auction in lots and legal subdivisions, said sales to be made for cash or for credit in the manner prescribed in the act of the 9th of January, 1836. And this defendant avers that pursuant to such authority the said Board of Trustees did sell to the said Charles B. Boyer, the south fraction of the northwest quarter, and the north fraction of the southeast quarter, and the north fraction of the northwest quarter, and the south fraction of the southeast quarter, of Sec- tion 25, in Township 34, North of Eange 8, East of the 3rd P. M., excepting and reserving so much of said tract as is occupied by the canal and its waters, and a strip 90 feet wide on either side of said canal, containing 196.62 acres, more or less, and did execute and deliver to the said Boyer their deed dated the 22nd clay of Oc- tober, 1860, in words and figures substantially as follows, to-wit; 143 ‘MCxow ALL MEN BY THESE PKESENTS, That the Boai'd of Trustees of the Illinois and Michigan Canal, under the au- thority vested in said board by the act of the Legislature of the State of Illinois of February 21, 1843, entitled, L\n act to provide for the completion of the Illinois and Michigan Canal and for the payment of the canal debt,’ has sold to Charles E. Boyer the following described tract of land, to- wit: The south fraction of the northwest quarter and the north fraction of the southeast quarter, and the north fraction of the northwest quarter, and the south fraction of the south- east quarter of Section Twenty-five (25) in Township Thirty- four (34) North, of Eange Eight (8) East of the Third Prin- cipal Meridian, excepting and reserving so much of said tract as is occupied by the canal and its waters, and a strip ninety (90) feet wide on either side of said canal, containing one hundred ninety-six and sixty-two hundredths (196.62) acres, more or less, said tract being a portion of the land granted by the United States by the act of March 21, 1827, and the 29th day of August, 1842, and the 3rd of August, 1854, 118 to the State of Illinois, to aid said state in opening a canal to connect the waters of the Illinois River with those of Lake Michigan, and by said state granted to the said Board of Trustees of the Illinois and Michigan Canal, for the purposes set forth in said act of said state of February 21, 1843. Know Ye Also, That the said Charles E. Boyer paid to the treasurer of said Board of Trustees tlie sum of one thousand five hundred and fifty-six dollars and fifty-two cents ($1,556.52), being in full payment of the purchase money 144 for said land, and made according to the conditions set forth in the act of January 9, 1836, entitled ‘An act for the con- struction of the Illinois and Michigan Canal.’ In considera- tion thereof and the premises, the said Board of Trustees of the Illinois and Michigan Canal has granted, bargained and sold, and by these presents do grant, bargain, and sell unto the said Charles E. Boyer, the said tract of land above designated and described. To have and to hold the same, together with all rights, privileges, immunities and appurtenances thereunto belong- ing unto the said Charles E. Boyer, his heirs and assigns, for- ever. Iisr WITNESS WHEREOF, the said Board of Trustees of the Illinois and Michigan Canal have caused the corporate seal of said hoard to he affixed hereunto and the names of the president and secretary of said hoard to he affixed hereunto this 22nd day of October in the year of our Lord, 1860. W. H. Swift, William Gooding, Secretary/^ 145 And defendant avers that the said Board of Trustees did by their said deed convey the lands therein described to the said Boyer and that this defendant, by mesne conveyances from the said Charles E. Boyer, and by virtue of the deed of convey- ance from the said Board of Trustees of the Illinois & Michigan Canal to said Boyer, acquired all the right, title and interest of the said State of Illinois in and to the said northwest quarter and the southeast quarter of Section 25, excepting so much of said tract as was occupied by the canal and its waters and said 90-foot strip. And this defendant avers that its grantors and predecessors in title have used and cultivated the land lying between the al- leged meander line and the waters of said Desplaines River in said southeast quarter of said Section 25 down to the bank of said river, for more than 40 years last past, during all of which 119 time they have been in open, notorious and peaceable possession thereof, claiming title thereto in fee simple. And this defendant avers that the taxing authorities of the State of Illinois and the County of Grundy, in the State of Illi- nois, have from the date of the deed from the Canal Commis- sioners to said Charles E. Boyer, levied state, school and county taxes upon all of said land, including the land lying between the alleged meander lines and the waters of said Desplaines Eiver and in the bed of the stream thereof, in said southeast quarter of said Section 25, and have from time to time demanded and ex- acted of this defendant, and defendant \s grantors and predeces- sors in title, the payment of such taxes, and this defendant 146 and its predecessors in title have ever since the date of the deed from said Board of Trustees to said Boyer, down to the present time, a period of forty-seven years, paid state, school and county taxes upon all of said land, including the land lying between the alleged meander lines and the waters of said Des- plaines Kiver, and in the bed of said stream, and the F.ald State of Illinois and the people thereof are thereby estopped from claiming that the title to the lands lying between the alleged meander lines and the waters of said Desplaines Eiver and in the bed of the stream thereof in said southeast quarter of said Section 25 has not passed from the State of Illinois, or that it is not now vested in this defendant. This defendant further answering, denies that the 90-foot strip of land along the Illinois & Michigan Canal is necessary for the proper maintenance and use of the canal, or that it constitutes a necessary integral part of said canal, and denies that the Board of Trustees and said Canal Commissioners of the State of Illi- nois had not the right and authority, under the law, to convey the same by deed, lease or otherwise ; but, on the contrary there- of, this defendant avers that the 90-fooI strip is not a part of the Illinois & Michigan Canal but is a nart of the canal lands, and has been so held by the Supreme Court of this State, and that said strip has been to a large extent sold by the state, before the date of the said lease and contract of September 2, 1904. Defendant avers that the land described in the deed from the Canal Commissioners to Harold F. Griswold, bearing date the 6tli day of January, 1904, a purported copy of which is attached to said bill as Exhibit J, to-wit, that part of Section 147 31, Township 34 North, Eange 9, East of the Third Princi- pal Meridian, in Will County, Illinois, lying southwest and southeast of the Illinois & Michigan Canal, and northeast and northwest of the Desplaines Elver (excepting a strip of land 90 feet in width on the southerly side of the Illinois & Michigan Canal and bordering thereon and continuous through said Section 31) were canal lands and were not connected with water power upon the said canal or the 90-foot strip along the canal, and that the said Canal Commissioners had full power and au- thority to sell and convey the same. This defendant avers that by mesne conveyances from the said Charles E. Boyer, it did acquire title in fee simple to the lands lying in the bed of said Desplaines Elver and outside of the al- leged meander lines of said stream in the southeast quarter of said Section 25, and that by virtue of said contracts. Exhibits A and B, this defendant did acquire the right purported to be granted thereby, in and to the 90-foot strip of land lying between the waters of the Illinois & Michigan Canal and the said Des- plaines Eiver, and that the said deeds, leases, contracts and other agreements are valid and subsisting deeds, leases, contracts and agreement to the premises therein respectively described; and this defendant denies that by virtue of the several enactments of the Congress of the United States, and the several acts of the legislature of the State of Illinois, as set forth in said bill, the bed of the Desplaines Eiver is owned by the State of Illinois, or that the same has not been conveyed by any deed to anybody 148 whomsoever; and denies that the lands on said Section 25 last above described, and other sections of land along the line of the Desplaines Eiver, so granted to the State of Illinois by the act of Congress hereinbefore referred to, outside of the alleged meander line of the Desplaines Eiver, have not been con- veyed by the State of Illinois nor by any other person or per- sons, or corporation whomsoever, having authority to so convey the same, and deny that the same remain, and are, owned by the State of Illinois; but, on the contrary thereof, this defendant avers that by virtue of the act and deed of cession of the State of Virginia, and the act of Congress of March 2, 1827, and the act of tlie legislature of the State of Illinois of February 21, 1843, the act of the legislature of the State of IlFinois of March 1, 1845, and the deed of trust executed pursuant thereto, and the deed of the Board of Trustees of the Illinois & Michigan Canal, hereinabove referred to, and by mesne conveyances from the said Charles E. Boyer to this defendant, this defendant acquired all the said lands in the southeast (juarter of Section 25, Township 34, Range 8, East of the Third Princi];)al Meridian, in Grundy County, Illinois, excepting so much of said tract as is occupied by the canal and its waters, and a strip 90 feet wide on either side of said canal. This defendant admits that it claims to be the owner of the bed of the stream of the Desplaines River and other lands of said southeast quarter of said Section 25, and other lands for a distance of nine miles up the Desplaines River, which are outside of the alleged meander lines of said river, but denies that 149 said claim is in violation of the rights and interest of the People of the State of Illinois, as alleged in said bill; and defendant avers that it has at great expense acquired lands in the bed of said Desplaines River, and along the shore thereof for a distance of about nine miles, including all the lands which will be flooded by its proposed dam, for the purpose of creating water power as alleged in said bill ; admits that it had actually begun the erection of a dam across the said Desplaines River and across the 90-foot strip of land alleged by said bill to be reserved for the use of the Illinois & Michigan Canal, and across other lands outside of the alleged meander lines of the Desplaines River to connect with the bank or towpath of the canal, and was so constructing said dam as to cause the water to be backed up and to overflow the lands along said river for the distance of 9 miles or thereabouts, but' denies that any of the lands so to be overflowed belong to the State of Illinois. This defendant admits that on the 12th day of December, 1907, the attorney general of the State of Illinois caused to be served upon it a certain notice as is alleged in paragraph 9 of said bill, copy of which is attached to said bill, marked Exhibit M;” and admits that it disregarded said notice as it had a right to do; and admits that after the service of said notice, it continued in the work of constructing said dam at said place in the bed of said river, as alleged in said bill; and admits that it continued such construction up until the issuance of the temporary injunc- tion herein ; but denies that the completion of said dam would 150 be to the great impairment, or any impairment, of the ease- ment of navigation, if any such easement existed, or to the great and irreparable injury, or to any injury, of the people of the State of Illinois, but avers that in case the United States or the State of Illinois should hereafter construct a deep waterway in said Desplaines Eiver said dam will be a distinct aid and benefit thereto, to the extent of more than $500,000. Denies that if said dam is permitted to be erected by said de- fendant, it will destroy and interfere with the Desplaines Eiver as a navigable water way for the use of the people of the State of Illinois, or for the people of the United States, and avers that its said dam does not and will not in anywise interfere with the intent and purpose of said act of the Legislature of Illinois of December 6, 1907. Denies that it will overflow or destroy the value of lands, and the use of lands, belonging to the state, adjacent to the Desplaines Eiver, or that it will destroy the use of the 90-foot strip of land, or that it will render the same inoperative, and a purpres- ture, or that it will impair the benefit of the same to said canal ; denies that it will destroy a feeder of the Illinois & Michigan Canal, or that it will constitute a purpresture or that the same will produce and work irreparable loss and damage, or any loss and damage to, the Illinois & Michigan Canal, or to the State of Illinois, or to the rights of the people of the State of Illinois. This defendant further answering, admits that the agreement. Exhibit A, purports to give rights as therein set forth; but 151 denies that each and every, or any, of the provisions of such agreement relating to such rights were beyond the power of the said Canal Commissioners to grant; but avers that at the date of said several agreements, the said Canal Commissioners, had full power and authority to grant the rights and privileges granted in and by each and every of said contracts. This defendant admits that the lease. Exhibit B, purported to 123 convey and demise an interest in the said 90-foot strip within the area described in said lease, in that part of the canal called the Kankakee Feeder, and purported to give a right of renewal to the party of the second part therein named, and purported to be made subject to said contract Exhibit A. Admits that each of said contracts purported to be contracts on the part of the Canal Commissioners with said Griswold, his successors and assigns, but denies that by their terms they might be assigned one to one assignee and the other to another or dif- ferent assignee. This defendant admits that the said contract was so entered into between the parties thereto, with the mutual knowledge and understanding that the party of the second part, or his assignee, intended to make use of the same in erecting said dam and de- veloping water power in the Fesplaines Fiver, but denies that the same amount to a lease of water power rights on, or of lots and lands connected with water power on the Illinois and Michi- gan Canal. Admits that said lease and contract were not entered into upon notice by publication, and that they were not limited to a ])eriod of ten years, but denies that that fact was contrary to the pro- visions of a certain act entitled ‘^An act to revise the law in rela- tion to the Illinois & Michigan Canal and for the im- 152 provement of the Illinois and Little Wabash Fivers,’’ ap- proved March 27, 1874, and acts amendatory thereof, and in particular to the provisions of Clause 6 of Section 8 of said stat- ute as amended by a certain act amendatory thereof, approved June 19, 1891, in force July 1, 1891, and deny that the said lease and contract were beyond the power of the commissioners to enter into, or that the same are null and void. This defendant denies that treating said instruments as leases of water power, they are subject to the power of the state to resume, without compensation to this defendant, the use of such water power, or that they are further subject to the power of the state to abandon or destroy the work by the construction of which the water privilege therein purported to be conferred shall have been created whenever, in the opinion of the legislature, such work shall cease to be advantageous to the state. 124 This defendant denies that Clause 6 of Section 8 of the act approved March 27, 1874, as amended by act approved June 19, 1891, applies to the premises so leased by said instrument, and avers that said act only authorizes the abandonment or destruc- tion of works over which the state or the Canal Commissioners have control. This defendant denies that the opinion of the legislature that such work has ceased to be advantageous to the state, was ex- pressed by the statute approved and in force December 6, 1907, entitled ‘^An act recognizing the Desplaines and Illinois Divers as navigable streams, and to prevent obstructions being 153 placed therein, and to remove obstructions therein now ex- isting.’’ This defendant avers that said act last mentioned has no ref- erences to any work connected with said canal, over which the said Canal Commissioners or the legislature of the State of Illi- nois had any authority or control. This defendant denies that said contract was a further lease for the purpose of enabling the assignee therein to develop and create water power, but avers that the same was merely a flow- age contract and not necessary to be made in conformity with the provisions of the statute last above cited in reference to the Illinois & Michigan Canal. Denies that the Kankakee Feeder was an integral part of said canal or that said agreement was beyond the power of the Canal Commissioners to make; but, on the contrary thereof, said feeder has long since been abandoned, and was wholly unnecessary for the operation of said canal. This defendant admits that said lease. Exhibit C, contained a provision expressly reserving to the Commissioners the right to cancel the lease and to recover possession of the land, property and rights therein demised and referred to, whenever in the judg- ment of the Canal Commissioners or other proper officers of the state at such time having charge of the canal property, they shall deem the interest of the state required it to re-possess and use said property for state purposes; but this defendant denies that said power of revocation and cancellation may be exercised by the legislature of the state, and denies that the same was J;~4 exercised by the legislature of the state by the enactment of the statute of December 6, 1904, above referred to; and denies that the exercise of the powers, privileges and rights con- ferred by said lease Exhibit C will constitute and create obstruc- tions of the Desplaines River. This defendant admits that Exhibit J purports to convey the lands therein described, and in terms includes the lands lying and being situated outside of the alleged meander lines of the Des- plaines River, and that it purports to be subject to the terms of said tlowage contract. Exhibit A, and said lease. Exhibit B. This defendant denies that the lands and lots described in said deeds are lands and lots connected with the water power privi- leges. , Denies that Exhibits A and B purj)ort to convey and create water power privileges. Admits that said advertisement thereof did not designate and describe said premises as water power privileges, and did not limit the same to the term of ten years, but denies that leases of water power privileges were at the time of the execution of said lease limited by law to a term of ten years, but avers that by tlie sixth clause of Section 8 of the act of March 27, 1874, entitled ^‘An act to revise the law in relation to the Illinois & Michigan Canal and for the improvement of the Illinois and Little AVabash Rivers,’^ as amended by act approved April 21, 1899, in force 155 July 1, 1899, the Commissioners were given power to lease wafer power and lands and lots connected therewith for a period of twenty years, and power to provide for the extension of any lease from time to time. And 'this defendant denies that said contract and lease. Ex- hibits A and B, were beyond the power of said commissioners, or were null and void, and denies that the same were leases of water power or lands and lots connected therewith within the meaning of any of said acts, or that they were subject to any power in the state to resume the same, or to abandon and destroy the work by the construction of which water power shall have been created, whenever in the opinion of the legislature such work should have ceased to be advantageous to the state. 126 And this defendant denies that the' opinion of the legislature that the work ceased to be advantageous to the state was ex- pressed by the statute, approved and in force December 6, 1907', entitled ‘^An act recognizing the Desplaines and Illinois Elvers as navigable streams and to prevent obstructions being placed there- in, and to remove obstructions therein now existing.” This defendant admits that the pole lease. Exhibit K, conveyed to said Griswold, his successors and assigns, the right to main- tain a line of poles along said canal from the west line of said Section 25, upon wJiicli said dam has been located to Eobey street, in the City of Joliet, and from the same point in said Section 25 to the west limits of the City of Morris, in Grundy County; and this defendant admits that the said lease was made upon the same day as said contract and lease. Exhibit A and Exhibit B, and admits that it was for the purpose of transferring and con- 156 veying electrical energy by said proposed line of poles, but denies that it was subject to all the infirmities alleged in said bill as to said contract and lease. Exhibits A and B, or to any in- firmity. This defendant denies that said contracts, deeds and leases, or either, or any of them, were entered into on an inadequate con- sideration; but, on the contrary thereof, avers that the considera- tion paid therefor by said Harold F. Griswold to said Canal Com- missioners was wholly adequate and was the full value of the rights thereby granted. Defendant avers that the granting of the temporary injunction herein without bond has resulted in irreparable injury to this de- fendant, and was a taking of the property of this defendant without due process of law in violation of the 14th Amendment to the Constitution of the United States, and Section 2 of Article III of the Constitution of Illinois. This defendant denies that the said complainant, the State of Illinois, or the people thereof, are entitled to the relief prayed for in said bill, or any part thereof, and prays the same advantage of this answer as if it had pleaded or demurred. to said bill of complaint, and it prays that the temporary injunction heretofore issued herein be dissolved, and that defendant be hence dismissed. 127 with its reasonable costs and charges in this behalf most wrong- fully sustained. Economy Light & Power Company, By Scott, Bancroft & Stevens. Scott, Bancroft & Stevens, IsHAM, Lincoln & Beale, Solicitors for said Defendant. 92 (Abstract of the foregoing answer for the convenience of the Court.) State Not Proper Party Complainant. Answer states that as to the land in the 1)ed of the Desplaines Biver and outside of the meander line of Section 25, Township 34 North, Range 9, East of the Third P. M. in Grundy County, that complainants in this action are not the proper parties to exhibit the bill, and aver that if said lands have not been alienated by the State of Illinois, they remain a part of the Canal lands, and that it would be the duty of the Canal Commissioners, under the act of March 27th, 1874, ‘Go take all necessary proceedings on behalf of the State to establish the title of the State and recover posses- sion of any canal lands or real estate owned by the State, which may be claimed by, or be in the adverse possession of another i)er- . son or party.’’ Denies the right and power of the Attorney General and Gover- nor to institute or prosecute this suit without the express consent and direction of the Canal Commissioners, and avers the lack of proper parties complainant in this bill, and avers That so much and such parts of said bill as charge this defend- ant is a trespasser upon said land, that the Attorney General has no authority or right to exhibit or maintain this bill, but that it is the duty of the Canal Commissioners. Avers that by the act of March 27, 1874, revising the Act relat- ing to the Illinois and Michigan Canal, etc., that the Canal Com- missioners are given the control and management of the Illinois and Michigan Canal, and that suits may be prosecuted by them in the name of the Canal Commissioners, and that if the contracts in the said bill mentioned, or any of them, are invalid, that the Canal 128 Commissioners are the proper parties, and the only proper parties, who can maintain an action to set aside such lease, contracts or deeds, or any of them. Adequate Eemedy at Law. Avers that as to so much of said bill as alleges the contracts, leases and deeds thereto attached are null and void, the complain- ant has a complete and adequate remedy at law, and is not entitled to any relief from a court of equity. Avers that the hill shows that the land outside of the alleged meander lines of the Desplaines Eiver in Section 25, Township 34, North Eange 9, East, and in the bed of said Eiver in said Section 25, and the certain other lands mentioned in said bill, are in pos- session of this defendant (excepting a strip of land 90 feet in width on the southerly side of said canal) under bona fide claim of title thereto, deduced from the State of Illinois, and claims that the remedy is at law, instead of in equity. Avers that the defend- ant has the right to have his title tried by two separate tnals before two separate juries. Avers that the bill is an attempt to take the joroperty of the defendant for public purposes, and that the defendant is entitled to liave his comt^ensation for the property sought to be taken fixed " by a trial by jury. Avers that said bill is multifarious in that it joins three separate and distinct causes of action, first, an alleged cause of action by which the State claims title to certain lands in fee in the capacity of indvate owner, second, an alleged cause of action in which the State in its sovereign political capacity seeks to assert the rights of the public in an alleged public highway, and third, an alleged cause of action in which the State, in its capacity as private owner, seeks to set aside certain contracts, deeds and leases, which it claims were executed by the Canal Commissioners of the State of Illinois without authority. Defendant prays the same advantage of the answer as if it had demurred on the ground of multifarionsness. Defendant says that the deeds, leases and contracts mentioned in the said bill could only be set aside upon restitution of the consideration paid by Griswold. The people do not offer to return same. 129 Ordinance of 1787. Said answer admits that in the early history certain territory embracing Ohio, Indiana, Michigan and Wisconsin was claimed to be owned by Virignia. Admits that by certain acts of the legis- 99 lature of Virginia and deed of cession said territory was con- veyed to the United States; that on the 13th day of July, 1787, the Congress of the United States enacted the ordinance commonly known as the ordinance of 1787; admits that Section 14 of said ordinance provided that the articles therein should be considered as articles of compact between the original states and the people and the states in said territory unalterably, unless by common consent. Admits that Article 4 provided ^‘The navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same shall be common highways and forever free ^ * * without any tax, imposts or duty therefor.” Avers that it was provided in said ordinance in the Fifth Ar- ticle that states thereafter formed out of said territory should be admitted into congress ‘‘on an equal footing with the original states in all respects whatever.” Admits Congressional Legislation. Said answer admits that on May 18, 1796, Congress passed “An Act providing for the sale of lands of the United States in the territory northwest of the River Ohio and above the mouth of the Kentucky River.” Admits that Section 9 of said act provided that “All navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public high- ways.” 100 Defendant alleges that said act did not affect the land in controversy in this bill and is immaterial to the issue therein, and prays the same benefit as if it had excepted or demurred to such portions of the bill upon those grounds. Said answer admits the organization of Indiana territory, and that on March 26, 1804, Congress passed “An act making pro- vision for the disposal of the public land in Indiana territory, and for other purposes.” Admits that Section 6 thereof provided 130 that ‘‘All navigable rivers, creeks and waters within Indiana ter- ritory shall be deemed and remain public highways.” Admits that Congress by Act of February 3, 1809, provided that the ter- ritories now comprising the State of Illinois, constitute a separate territory; admits that said act provided that there should be es- tablished within such territory a government similar to that pro- vided by the ordinance of 1787, and that the inhabitants should be entitled to all rights and advantages secured to the people of the Northwest territory by said ordinance. 101 Admits the passage of an act by Congress on April 18, • 1818; that said statute j^rovided that the government thereof should be reimblican and not rei^ugnant to the ordinance of 1787. Admits that the people of Illinois territory adopted the consti- tution of 1818, the preamble of which recited that the peoj)le of said territory having the right of admission to the Union consistent with the constitution of the United States, the ordinance of 1787 and the Act of April 18, 1818, agreed to form themselves into a free and independent state. Admits that on December 3, 1818, Congress adopted a resolu- tion declaring the admission of Illinois into the Union; that said resolution declared that the constitution and state government so formed was in conformity to the ordinance of 1787. Def end- 102 ant avers that the second section of said resolution declared Illinois admitted into the Union on an equal footing with the original states, and that upon admission of Illinois into the Union the ordinance of 1787 ceased to have, and has not now, any force within her territory. Desplaines River Is m the Northwest Territory. Admits that the River Desplaines is situated in said territory, but denies that it flows a distance of 96 miles to Lake, Cook, Will and Grundy Counties in Illinois ; admits the allegations in para- graph 3 of said bill relating to the Kankakee River, alleges they are immaterial and prays benefit of the answer as if it had pleaded or demurred. Admits that the Desplaines is wholly within the Northwest Territory, but denies that it is subject to the provisions of the Acts of Congress set forth in the bill. Defendant denies 131 that it is shown by the history of explorations and otherwise that the Desplaines River was then navigable from a point near the location of tlie City of Chicago, or from any point to the mouth of the Desplaines in Grundy County or to any other point. De- 103 nies that that portion of the river was used as a highway for commercial purposes in the early period of the state of Illi- nois and that commerce was carried on thereover, and that con- nection was made with the Chicago River by portage, and that it was in use as a highway of commerce from Lake Michigan to the Ohio River, and from that time up to the passage of the ordinance of 1787 and the said Acts of Congress. Illinois Legislation. Defendant denies that Illinois by its legislature or otherwise assumed or took charge of the Desplaines. Admits that said state dtd by the act mentioned in the bill purport to authorize the build- ing of a toll bridge thereover on the northwest quarter of Section 11, Township 39 North, Range 12, East of the Third P. M., and the southeast quarter of Section 2 in said Town and Range. Denies that said act authorized the construction of two bridges; avers that said act was not passed by virtue of any i^ower of the 104 state over said river, but merely to confer the franchise to collect toll, and that the place where said bridge was so au- thorized to be located was not on a part of the river involved in this case but on that part of the river declared navigable by the legislature by act of February 28, 1839. Admits that the legislature passed an Act, in force February 26, 1839, entitled ^‘An Act to amend the several laws in relation to the Illinois and Michigan Canal”. Denies that sub-section 9 of Sec- tion 2 thereof provided ‘^That no streams of water passing through the canal lands shall pass, by the sale, so as to deprive the state from the use of such water, if necessary to supply the canal, without charge for the same,” And that sub-section 11 provided that ‘‘Lands situated upon streams which have been meandered by the surveys of public lands by the United States shall be 132 considered as bounded by the lines of those surveys and not by the streams,” and avers that it was provided in Section 2 of said act that in all sales of land and lots under the provisions of said act, certain con- ditions should be annexed, which conditions included those set forth in sub-section 9 and 11 of Section 2. Avers that the bill does not allege that the use of any water of any stream passing through the lands described in said bill is 105 necessary for the canal. Defendant alleges that the use of such water is not necessary to supply the canal; that the Canal Commissioners do not need such water for canal purpose; that if such use was necessary the Canal Commissioners would be the proper party to take steps to obtain such water; that the com- plainants have no authority to maintain suit for that purpose. Defendant denies that the lands of the Desplaines Eiver were meandered by survey of the United States. Avers that Section 2 of the Act of February 26, 1839, and sub- sections 9 and 11 of Section 2 only apply to sales by Canal Com- missioners of lands theretofore authorized to be sold. Avers that said sub-sections 9 and 11 were repealed by act of the legislature of Illinois of February 21, 1843, entitled, ^‘An act to provide for the completion of the Illinois and Michigan canal, and for payment of the canal debt. ’ ’ Avers that by Section 13 of the act of February 21, 1843, it was provided that sales of land should be made as de- scribed in the act of January 9, 1836. That said last mentioned act contained no such provisions as in sub-sections 9 and 11 of Section 2 of the act of 1839. The answer admits that the legislature by the act of February 28, 1839, declared the Desplaines navigable from a point where it most nearly connects with the Illinois and Michigan canal to its source within the state and should be open for passage of all boats and water crafts. Defendant avers that said river was not in fact navigable through that course, or any portion, and denies that the legislature could ini])art the character of navigability, and avers that said declara- tion was a recognition by the legislature that that river was nob navigable from a point where it most nearly connects with the canal to its moutli, and that the j)omts where it is constructing said dam is in that part of said river. 107 Said answer admits that hy the act of Marcli 3, 1845, tJie legislature authorized Stephen Forbes to construct a dam across the Desplaines River in Cook County at the point named in sai'd act, and that said statute contained the proviso, ‘‘That this act shall not operate to prevent the state from improving said river by dams, or from using the water in said river for the Illinois and Michigan canal at any time hereafter or for any other purpose”; and defendant alleges on information and belief that said Forbes about 1866 constructed a dam across the said river at the place named without provision therein for the passage of boats, and he and his successor in title have maintained same ever since with- out the provision for the passage of boats ; that no boats ever could pass said dam. Alleges that the site of said dam was in that part of the Desplaines declared navigable by aforesaid act, and that the act authorizing the construction thereof, and the construction thereof, was inconsistent with the use of said stream for naviga- tion ; that said dam would have completely prevented navigation if said stream had been in fact navigable. 108 Said answer admits that the legislature by its act of Febru- ary 12, 1849, authorized the construction of a bridge over the Desplaines River at Lockport, and avers that said act was incon- sistent with the use of said stream as a navigable stream, and that the object of said act was to provide for the submission to said township of the question of levying a tax, and not for the purpose of authorizing the construction of a bridge over a navi- gable stream. Said answer admits that by its act of May 29, 1889, the legisla- ture provided as is set out in said bill, and admits that Section 23 of said act provided that said act should not be construed to au- thorize the injury or destruction of existing water power rights, and avers that the water power rights involved in this cause were in existence at the date of the passage of said act, and have 109 since been acquired by the defendant; that said act specially prohibits the injury or destruction thereof. Defendant admits that Section 24 of said act provided that. 134 ‘^Whenever the general government shall improve the Des- plaines and Illinois Eivers for navigation to connect with this channel, said general government shall have full control over the same for navigation purposes.” Defendant avers that said Section 24 was a recognition by the legislature of Illinois that the Desplaines is not a navigable stream. Said answer admits that the legislature of Illinois on May 14, 1903, enacted a statute entitled ‘‘An act in relation to the Sani- tary District of Chicago,” etc. Defendant avers that said act is irrelevant and prays the benefit as if it had demurred. Act of December 6th, 1907, Unconstitutional. Said answer admits the organization of the Sanitary District, the construction of the channel as alleged in the bill, and alleges that that fact is immaterial and prays benefits as of demurrer. 1 10 Defendant admits enactment of act of December 6th, 1907, en- titled “Bill for an act recognizing the Desplaines and Illinois Kivers as navigable streams, and to prevent obstructions being placed therein and remove obstructions therein now existing.” Admits the provisions of Section 1 of said act and alleges that so much of said act as declared the rivers mentioned to be navigable was unconstitntional, as the power to adjudge and declare the navigability of streams was vested in the judiciary; also that it is unconstitutional in that : 1st. The body of said act is broader than the title thereof; 2nd. It confers upon the Attorney General and Governor of the State of Illinois judicial joowers, to wit, the determination of what obstructions interfere with the intent and purpose of said act; 3rd. It deprives this defendant of its property without due process of law; 4th. It denies this defendant the equal protection of the laws ; 5th. It is taking private property of this defendant without just compensation; 6th. It is a special law laying out or opening a highway; 7th. It is a special law atfecting only property in and along the Desplaines Eiver. Said answer admits that Charles S. Deueen is the governor re- ferred to in said statute, but denies that by reason of said statute. 135 by virtue of liis office, lie lias any interest in the matters therein set forth. Said answer denies that the Desplaines has at any time formed a continued highway with water in sufficient volume to afford a channel for navigable and commercial purposes. Said 112 answer denies that the Desplaines has been a navigable stream from any point to any other point, and that said act of the legislature shows the fact so to be, and denies that it has been, or is the policy of the state to hold and maintain said river a navi- gable stream. Denies that said river is subject to the provisions of said acts of Congress and that liy reason thereof said river was a highway of commerce or preserved for the use of the people of the state or states as a public highway. Denies that it has not been alienated and that the people of the state have any easement thereover for commerce; that the bed or waters thereof are im- pressed with said easement or public right of navigation, and al- leges that there has never been any navigation on said river of any kind or character, and that said stream from its source to its mouth is in fact incapable of being navigated. Dentes Eiver Is Navigable in Fact. Defendant avers that said river in its natural state had not suffi- cient water for more than fifteen days in the year to float a canoe, and was not capable of being navigated for commerce. That • 113 there had never been any navigation of said river for com- mercial purposes. That said river from the place where it crosses the state line between Illinois and Wisconsin to its mouth is a series of pools and shallows, and more nearly resembles a lirook or rivulet than a river. That from Lockport to the mouth of said river, a distance of about 18 miles, there is a fall of 90 feet: that approximately half of the distance is composed of rapids and riffles; that between Lockport and Brandon’s Bridge, a dis- tance of 7 miles, there is a fall of 34 feet, and between Jackson street and McDonough street, in the City of Joliet, a distance of 5,000 feet, there is a fall of 9 feet, an average of 1.8 feet per thous- and feet, or over 9.5 feet per mile. From McDonough street to Brandon’s bridge, a distance of 2,000 feet, there is a fall of 3.75 feet, or 9.9 feet. per mile. That along Treat’s Island for a dis- tance of 2,000 feet there is a fall of 5.5 feet, or over 14.52 feet per 136 mile; that at a point called Smith’s bridge, a distance of 3,000 feet, there is a fall of 2 feet, or 7.92 feet per mile; that at Dresden Heights, where the dam of the defendant is being constructed, in a distance of 2,000 feet, there is a fall of 3.2 feet, or 8.44 feet per mile; that from Jackson street in Joliet to Brandon’s bridge, a little over 2 miles, in the first 5,000 feet there is a fall of 9 feet; in the next 2,000 feet of 3.75 feet; in the next 2,000 feet 5.5 114 feet, and in the next 3,000 feet, 2 feet, making in a distance of 12,000 feet, 20.25 feet fall, or an average of 8.91 per mile. Defendant avers that during times of freshets or high water, which usually last only for very short periods, from one day to two weeks, the current over said slopes is so swift that no boats could descend the river except at peril to life and property; that it would be impossible for boats carrying merchandise to ascend at such times. Erection of Prior Dams. Defendant avers that dams and bridges have been located over said stream without legislative authority, as set out in said answer, viz. : a dam known as Beards dam in 1833, at substantially the place where defendant is constructing its dam, without any pro- vision for the passage of boats; that said daiii was maintained for many years. That in 1835 dams were located across each channel of said river in Section 11, Township 39 North, Kange 9 East. That said two last mentioned dams were located upon odd num- bered sections, through which sections the state now claims that the shore and bed of said stream were reserved from sale. 115 That said dams were constructed by the owners of the ad- joining land as an exercise of the right of ownership. That there was a dam built in 1839 near what is now McDonough street in Joliet that remained in said river from then until 1898 when it was removed by the Sanitary District upon its paying damages therefor a sum of $80,000. That there was a dam built in the summer of 1833 entirely across the river just south of what is now Cass street in Joliet which remained until 1841, when it was removed by the state upon paying as damages therefor $17,- 655. Defendant avers that said dam was constructed by the owner of the abutting land in the exercise of ownership over the abutting land and tbe bed of the stream; that if Ihe river was at tlie time of removing- said dam a navigal)le stream and said dam was an ol)striiction, it was in said stream witliont right, and tlie state could have removed same witliont payment of damages, and avers that the action of the state in ])aying damages was an admission that said stream was not navigalile and that said dam was IK) lawful in said stream. That in 1838 a dam known as Norman’s dam was built across one channel of the river opposite where the state penitentiary is now located. That in 1839 there was a dam known as Daggett’s dam entirely across the river at Lockport. That prior to 1847 there was a dam across the river in Lake County. Defendant avers that there were no provisions for passage of boats in any of the said dams. Defendant avers that for many years there were no bridges across said river and that the river was forded at many points ; that afterwards bridges were established and are now located at the following points: Smith’s bridge in Section 21; Millsdale bridge in Section 11; Brandon’s bridge located in Section 30; six bridges in Joliet known respectively as the McDonough street bridge, the C., E. I & P. E. E. Co’s bridge, the Jefferson street bridge, one 117 at Cass street, one at Jackson street and one at Euby street; also a bridge crossing the river in the Townshi]r of Lockport. Defendant avers that all these bridges are fixed bridges with no provision for passage of boats and that boats cannot pass any thereof, and avers that no legislative permits were granted by the state for location of any of said dams or locations of any of said bridges. That in 1846 the state completed dam No. 1 entirely across the Desplaines Eiver, forming the upper basin of the I. & M. canal, which dam is now in existence. That in 1841 the state built dam No. 2, extending entirely across said river and forming the lower basin of the canal, which dam remained there from 1841 until 1899 when it was removed by the Sanitary District with the consent of the Canal Commissioners. Defendant avers that by stipulation filed in case of Haven v. 138 Board of Trustees of the I. S M. Canal in the Circuit Court of Will County, tried at the October Term, 1848, it was admitted by the Canal Trustees that the Desplaines River was not navi- 118 gable in fact, although a portion of it had been declared to be so by act of legislature. Defendant avers that in a proceeding in the Circuit Court of Will County by the Sanitarij District against William J. Adams, the Haven dam above referred to, together with the water power rights connected therewith was taken by the Sanitary District by eminent domain, and the court awarded the defendants a large sum as 'compensation therefor and for the property connected therewith. Defendant avers that said judgment anT said affirm- ance were in effect a finding that said dam was lawful in said stream, and that no easement of navigation existed therein. Admits Grant of Canal Lands. Said answer admits that by act of Congress of March 2nd, 1827, there was granted to the State of Illinois every alternate section in a strip of land ten miles wide along the line of the Illi- nois and Michigan Canal ‘‘for the purpose of aiding the opening of a canal to connect the waters of the Illinois River with those of Lake Michigan” as is alleged in the bill. Admits that Section 25 in Township 34 North, Range 8 East of the 3rd P. M. in Grundy Comity, Illinois, was among said lands. Admits that 119 the Desplaines and Kankakee Rivers unite and form the Illi- nois River in the southeast quarter of said Section 25, but de- nies that by survey of public lands by the United States the Des- plaines River was meandered and that purchasers from the state of lands in said section did not take or claim to take that portion of said land lying between the meander lines of the Desplaines and the waters of the river. Denies that said land between said meander line and the water have never been used under claim of right vested in said purchasers, except as claimed by defendant. Denies that land lying between the alleged meander line and the waters of said river in the southeast quarter of said Section 25, together with the bed of the stream of said river in said quarter section have not passed by purchase from the- state, and denies that same is owned by the state or held for use and benefit of the people of the state. 139 Denies Title of State to Land. Defendant alleges that the purchasers from the Board of 120 Trustees of the Illinois and Michigan Canal of lands donated by the United States to the state for said purposes did by their deeds and purchases acquire all right, title and interest of the state in and to said land described in their deeds, including lands between the meander lines and the waters of streams run- ning through said land and in the beds of said streams, and have always claimed title thereto; that their title has always been recognized, and that lands between meander lines and banks oT streams have been cultivated by purchasers from the dates of their purchases to the present time. Said answer admits that the trustees of the Illinois & Michigan Canal, executed and delivered to- one Charles E. Boyer, a deed dated October 22, 1860, to the south fraction of the northwest quarter of Section 25, and the north fraction of the southeast quarter and the north fraction of the northwest quarter and the south fraction of the southeast quarter of said Section 25, ex- cepting and reserving so much of said tract as was occupied by the canal and its waters, and a strip 90 feet wide on either side of said canal, said tract containing 196.62 acres and being a por- tion of the land granted by the United States to the state to 121 aid in opening said canal, and by the state granted to the Board of Trustees of said canal for the purjioses set forth in the act of said state of February 21, 1843. Denies that no part of said northwest ipiarter and southeast quarter of said Section 25 outside of the alleged meander line of the Desplaines Eiver were conveyed by said deed to said Boyer, and denies that the same remained the property of the state; avers that said deed was a conveyance of all lands belonging to the state in the subdivisions therein described, including the land situated outside of the alleged meander line and the land lying in the bed of the stream of the Desplaines Eiver and that title to all thereof passed to Boyer by virtue of said conveyance. Ad- mits that defendant’s claim to said premises outside of the al- leged meander line of the Desplaines Eiver in Section 25 is based upon mesne conveyances from said Boyer and the several leases and contracts attached to said bill. 140 Admits that on March 2, 1827, Congress passed an act entitled, ^^An act to grant a quantity of land to the State of Illinois for the purpose of aiding in opening a canal to connect the waters of the Illinois Elver with those of Lake Michigan’’; that said 122 act provided ‘‘the said lands shall be subject to the disposal of the legislature of the said state for the purpose aforesaid, and no other.” Admits that by said act of Congress that there was granted by implication the right of way for the construction of said canal through tlie sections of public land not donated to the state, and that said grant extended to land necessary to be used for the canal of the width contemplated. Admits that the route and location of the canal were duly sur- veyed and laid out and the odd numbered sections selected by the Commissioner of the Land Office, as alleged in the bill. Denies Eesekvation of Ninety-Foot Strip. Denies that Artemus J. Mathewson under authority and direc- tion of the Canal Trustees surveyed and marked lines of a 90-foot strip on each side of the canal as finally located from one end of said canal to the other, or that he filed in the office of said Board of Trustees maps and profiles of survey of said 90-foot strip ; denies that he had any lawful authority so to do. Admits that a strip of land 90 foot wide on each side of the canal was reserved from sale by the canal commissioners and canal trustees in many of the sales of canal lands in the odd num- bered sections, and that the title thereto remains in the state. Denies that said strip with the lands necessan^ to the right of way through which the canal is constructed constitute inte- 123 gral parts of the canal, or that they are necessary for its preservation and use, or preserved and protected by law against alienation. Avers that said commissioners are expressly authorized by law to sell any portion of said 90-foot strip ex- cept portions thereof utilized in connection with the use of water power upon said canal, or the sale of which would prevent or interfere with the proper use and operation of said canal as a waterway. Admits that the 90-foot stri]) was expressly reserved from sale in said deed of the trustees of the canal to said Boyer. 141 Defendant does not admit that exhibits attached to the bill are true copies, but believes they are substantially accurate. Admits the Contracts Were Made as Alleged. Admits that the canal commissioners entered into contract bear- ing date September 2, 1904 (Exhibit A to the bill) with Harold P. Griswold, and that said contract was assigned by said Gris- wold to defendant. Admits that said commissioners entered into a contract of lease (Exhibit B to the bill) with said Griswold dated September 2, 1904, and that said Griswold assigned said contract to defend- ant. 124 Admits that said commissioners entered into another con- tract with said Griswold (Exhibit C to the bill) as of date August 8, 1905, and that said Griswold assigned said contract to the defendant. Admits that said commissioners made application to the gov- ernor of the state for his consent to the sale of certain lands, dated June 7, 1904 (Exhibit D to the bill) and that a purported copy of approval of the governor as of June 14, 1904, is attached to the bill (Exhibit E). Admits that a certain notice of proposed sale was inserted in the Lockport Phoenix Advertiser” as alleged in said informa- tion, but that the sale so advertised to be made was adjourned and never thereafter resumed. Admits that after August 2 and under date of September 2, 1904, said commissioners entered into the agreement and lease mentioned as Exhibits A and B, and under date of November 1, 1904, said commissioners made application to the governor for his consent to the sale of lands described therein (Exhibit G to the bill) and that approval of said ap])lication by tlie gov- 125 ernor was made in writing (Exhibit H to the bill), bearing date November 2, 1904; that pursuant thereto notice of sale was inserted in the ‘‘Lockport-Phoenix Advertiser” as alleged in said bill. Admits that pursuant to said application last mentioned and the governor’s approval and said advertisement last mentioned. 142 said commissioners sold the lands therein mentioned and exe- cuted a certain deed to said Griswold of date of January 5, 1905 (Exhibit J to the bill) ; admits that said Griswold conveyed said premises so that by mesne conveyances they passed to defend- ant. Admits that said commissioners entered into a contract of lease with Griswold as of date December 2, 1904 (Exhibit K to the bill), and that said lease was assigned by Griswold to de- fendant. Admits that by virtue of the several deeds, leases and con- tracts mentioned in said bill and of its ownership of the bed and shore of the Desplaines River it claims the right to construct a dam across the Desplaines River and lands adjacent thereto and the 90-foot strip of land immediately adjoining the waterway of the Illinois & Michigan Canal and up to the towpath of the said Illinois & Michigan Canal and to construct the said dam 126 so as to flood the lands along the Desplaines River for a distance of several miles above the location of said dam and on the southeast quarter of said Section 25. Denies that said 90-foot strip is used for canal purposes; avers that said strij) through said quarter section has not been used for any purpose whatsoever either by said commissioners or by any one pursuant to authority granted them, and that said land was swampy and unproductive. Plans of Charles A. Munroe. Avers that during the year 1904 one Charles A. Munroe and associates acquired some 1800 acres of other land in connection with the land referred to in said instruments at. an expenditure of upwards of $200,000, the ownership of which gave said ^lun- roe and associates the right to construct the dam at the mouth of the Desplaines with a crest of such height as would hack the level of the waters of the Desplaines River to the level of the waters of Lake Joliet. Avers that at the time of making of said leases, deeds and con- tracts said commissioners knew that said Munroe and associates had acquired and were acquiring a large amount of other land at 143 a large expenditure of money for the purpose of utilizing same in connection with the land so acquired from said commissioners for the purpose of creating water power. 127 Avers that before the beginning of the construction of its said dam, and in order that said dam might be located at such point as would contribute to a waterway, if one should be con- structed, one Charles A. Munroe submitted plans of said dam to the War Department of the United States and requested said de- partment to express an opinion as to whether said plans would be in harmony with the work of inqn’ovement ])roj)osed hy the United States, i. e., a waterway from Lockport to St. Louis via the Desplaines, Illinois and Mississippi Rivers; that the chief of engineers of the army referred the latter to Lieut. Col. W. H. Bixby; that said Bixby reported to the chief of engineers of the United States army. 128-130 (Here follows in the answer the text of the letter of said Bixby to said chief of engineers, dated March 27, 1906, which is set out in full elsewhere in this abstract. Page 105 et seq.) 131 That said chief of engineers concurred in said recommenda- tion and reported to the Secretary of War, and on or about June 7, 1906, the War Department by Robert Shaw Oliver sent to said Munroe a letter. (Here follows the full text of said letter, bearing date of June 7, 1906, from Robert Shaw Oliver, Secretary of War, to Mr. Charles A. Monroe, (sic) which letter appears elsewhere in full in this abstract. Page 108 et seq.) Defendant Secured Rights of Munroe. 132 Defendant avers that on December 15, 1906, it acquired from said Munroe and associates all lands and rights ac- quired by them aforesaid; that it paid full consideration therefor without notice or knowledge of any claim that said leases, etc., from said commissioners were invalid and before the payment’ of said consideration said commissioners had knowledge that 133 defendant was acquiring said lands and rights. Avers that after said lands were acquired defendant im- mediately entered upon the work of constructing its dam at the 144 moutli of the Desplaines River, and entered into a contract for the construction thereof at a cost of upwards of $500,000 and a contract for the purchase of machinery to the amount of $145,000, upon which it has paid the sum of $52,500 and has become liable for the balance thereof ; that the State of Illinois having stood by without notice that it claimed said leases, etc., were invalid, it is estopped; denies that said leases, etc., are ineffectual to con- fer any right to build and maintain said dam, and avers that they confer upon defendant full right so to do. Avers that the earthern portion of said dam occupying the space between the power house and the I. & M. Canal, which space is reserved for a lock, has been entirely completed; that the space between said earthen dam and the river has been ex- 134 cavated to a depth of 20 feet; that a space of 500 feet from the north bank of the river to the center has been enclosed in a coffer dam ; that in connection with said work said contractor has erected 17 buildings and had on the ground at the time the injunction was issued engines, etc., to the value of $150,000. Avers Plans Same as Submitted to War Department. Avers that the plans upon which defendant was proceeding to construct its dam were the same as were submitted to the War Department, and that defendant proceeded to construct its dam in accordance therewith; that it proposed to build its dam to insure permanency and of sufficient capacity to hold the water of its upper pool at a height ecpial to the present level of Lake Joliet taken at 512 feet Memphis datum; whenever Congress or the state shall undertake the improvement of the Desplaines for navigation defendant jmrposes to comply with all the conditions specified in said letter to the end that its dam will not obstruct such improvements. Denies that the General Assembly of Illinois has by a joint resolu- tion dated October lb, 1907, proposed the building of a deep water- way. Avers that it did propose to submit to the electors the ])ro])o- sition to amend the constitution in the manner stated. Admits 135 that in (*ase a dee]) waterway is built in said river, locks and dams would necessarily be constructed across said waterway in 145 the channel of the Desplaines River at or near the location of the site of defendant’s dam, and that such dam would afford water- ])ower of great value; denies that any water power which might be created thereby will he lost to the state if defendant shall he permitted to construct its dam; avers that the state has no water power upon the said southeast quarter of Section 25; that the water power there existing belongs to the defendant; that the legislature of the state has no right to create water ])ower, and no right to take property of the defendant for that purpose. Avers that the act of the legislature passed December 6, 1907, and the joint resolution of the General Assembly (Kxhil)it L 336 to the bill) is an attempt on the part of the state to take the water power of this defendant without compensation in viola- tion of the constitution of the Ihiited States and of the State of Illinois and is special legislation. Grant of Land. Avers that by the act of cession of the State of Virginia of De- cember 20, 1783, and the deed of cession of March 1, 1784, the State of Virginia did convey, etc., over to the United States for the benefit of said states, all rights, title and claim as well of the soil as of jurisdiction which the said commonwealth then had to the tract of country lying and being to the northwest of the Ohio River for the purposes and on the conditions in said act, recited, among which was the condition that the states formed of said 137 territory should be republican and should be admitted mem- bers of the Union with the same rights as other states, and that the lands within the territory so ceded should be considered as a common fund for the use and benefit of such of the United States as had become members of the confederation, according to their several respective proportions in the general charge and ex- penditures, and should be faithfully disposed of for that purpose. Avers that the land in said Section 25 above described was among the lands so conveyed. That by virtue of the said act and deed of cession the United States acquired and held all of the lands thereby conveyed in trust for the benefit of all the states of the United States; that the United States by the act of March 2, 1827, 146 granted to Illinois said Section 25 , among other lands, for the ' purpose of aiding the state in opening a canal, and provided 138 that said land should be subject to the disposal of the legis- lature for that purpose. Avers that the state thereafter held said land including Section 25 in trust for the purposes therein expressed, and that said state had no right to divert Section 25, or any portion thereof, from the uses for which same was granted, and had no right to use the bed of the Desplaines, or land border- ing upon said stream within the alleged meander line for any other purpose than the construction of said canal, and that the applica- tion of said lend to any purpose other than that would be a viola- tion of the trust. Canal Legislation. Avers that in 1842 the state after having expended nearly $5,000,000 upon the construction of the I. & M. Canal, a large por- tion of the canal land being sold and the value of the remaining 139 canal land being inadequate to complete the canal, applied to the holders of canal bonds for a further loan; that said holders offered to subscribe to a loan to the amount of $1,600,000 for the canal, upon the condition that the state should convey to trustees for the benefit of the subscriliers to said loan all the canal land, etc., and that the state should establish a system of revenue by which i3ro vision should be made for payment of part of the accru- ing interest on the whole state debt. That pursuant to said offer the legislature at its session in 1843 passed an act. Section 1 of which provided that ‘^The governor of this state be and is hereby fully author- ized and empowered to negotiate a loan solely on the credit and pledge of the said canal, its tolls, revenues and lands.” 140 Defendant quotes from Section 10 of said act providing for carrying out said arrangement and avers that by Section 20 141 of said act the state pledged its faith to supply all defects to enable trustees to carry into full effect the intent thereof. Avers that subscriptions were made pursuant to said loan; that on ^larch 1, 1845, the legislature passed a further act. Section 1 of which provided that after the contract for the loan above de- scribed in said answer had been executed and the trustees ap- 147 pointed as contemplated the governor should execute a deed of trust of all said property to be held in trust as in said act stipu- lated; avers that the governor did execute a deed of trust as 142 provided. Avers-that by said act of February 21, 1843, said Canal Trustees acquired all right, etc., of the state in the lands in Section 25 above described, including the bed of the river for the purpose of securing said loan, and were authorized by said act to sell said land at public auction in the manner prescribed in act of January 9, 1836. Defendant '’ s Title to Land. Avers that pursuant to such authority said trustees sold the south fraction of the northwest quarter and the north fraction of the southeast quarter and the north fraction of the northwest quarter and the south fraction of the southeast (piarter of Section 25 to said Charles E. Boyer, reserving so much as was occupied by the canal and its waters and the 90 foot strip containing 196.62 acres, and executed their deed to said Boyer dated October 22, 1860. 143-44 (Here follows the text of said deed set out in full as found elsewhere in this abstract (page 117 et seq.). 145 Avers that said trustees did by said deed convey the land therein described to said Boyer and that this defendant by mesne conveyances from the said Boyer acquired said rights, etc., of the said state to said northwest quarter and southeast quarter of Section 25, excepting so much as was occupied by the canal and said 90 foot strip. Avers that its grantors and predecessors in title have used and cultivated the land lying between the meander line and the waters of said river in the said southeast quarter of Section 25 down to the bank for more than 40 years past, during all of which time they have been in open, notorious and peaceable possession thereof, claiming title thereto in fee simple. Avers that the taxing authorities of the State of Illinois and County of Grandy have from the date of said deed from said com- missioners to said Boyer levied state, school and county taxes upon all of the said land, including the land lying between the al- 148 leged meander line and the waters of said river, and have exacted payment oT such taxes, and defendant and its predecessors have paid said taxes from date of said deed to the present time, a 146 period of twenty-seven years, and that the state is estopped from claiming that the title to the land lying between the me- ander line and the waters of said river and in the bed of the stream in the said southeast quarter of Section 25 has not passed from the state, or is not vested in defendant. Denies that the 90 foot strip of land along the canal is neces- sary for the i^roper maintenance and use of the canal, or that it constitutes a necessary integral part of said canal ; denies that the Canal Trustees and Commissioners had not the right to convey the same by deed or lease; avers that the 90 foot strip is not a part of the canal, hut is a part of the canal land, and that said strip has been to a large extent sold by the state before the date of said lease and contract of September 2, 1904. Avers that the land described in deed from said commissioners to said Griswold dated January 6, 1904 (Exhibit J to the bill), to wit, that part of Section 31, Township 34 North, Range 9 East of the Third P. M. in Will County lying southwest and south- 147 east of the canal and northeast and northwest of the river, excepting a strip of land 90 feet wide on the southerly side of the canal, were canal lands and were not connected with the water power upon said canal or the 90 foot strip, and that said commissioners had full powder to sell the same. Avers Title in Defendant. Avers that by mesne conveyances from said Boyer it acquired title in fee simple to the lands lying in the bed of the Desplaines outside of the alleged meander line in the southeast quarter of Section 25 ; that by contracts. Exhibits A and B, the defendant ac- quired the right purported to be granted thereby in the 90 foot strip described, that said deeds, leases, contracts, etc., are valid and subsisting; denies that by virtue of enactments of Congress and acts of the Legislature of the state set forth in said bill the bec| of the river is owned by the state or that the same has not been 149 conveyed by deed to any one. Denies that the land in Sec- 148 tion 25 and other sections along the Desplaines River outside of the meander line have not been conveyed by the state, and that same remain and are owned by the state ; avers that by virtue of the act and deed of cession and the act of Congress of March 2, 1827, the Acts of the Legislature of Illinois of February 21, 1843, and March 1, 1845, and the said deeds of trust and the said deed to said Boyer and said mesne conveyances this defendant acquired all of said land in the southeast (juarter of said Section 25, except-"" ing so much of said tract as was occupied by the canal and its waters and a strip 90 feet in width on either side of said canal ; admits that defendant claims to be the owner of the bed of the Desplaines River and other lands in said southeast cpiarter of said Section 25, and other lands for a distance of 9 miles up said river which are outside of tlie alleged meander line; denies that said claim is in violation of rights and interests of the ])eople of 149 the state; avers that defendant has at great expense acquired lands in the bed of said Desplaines River, including all the land which will be flooded by the proposed dam, for the purpose of creating water power, as alleged in said bill. Admits that de- fendant has actually begun the erection of said dam across said river and across said 90 foot strip, and was so constructing said dam as to cause the water to be backed up and to overflow lands along said river for a distance of nine miles; denies that any of the lands belong to the state. Admits Service of Notice to Stop. Admits that on December 21, 1907, the Attorney General of the state caused to be served upon it a notice (Exhibit M to the bill) ; admits that it disregarded said notice; admits that after service of said notice it continued in the wmrk of constructing said dam up until the issuance of the temporary injunction herein; denies that the completion of said dam will be any impairment of the easement of navigation, if any such existed, or any injury to 150 the people of the state. Avers that in case the United States' or the state should construct a deep waterway said dam will be a distinct aid and benefit to the extent of more than $500,000. 150 Admits ok Dentes Specific Allegations. Denies that said dam if erected will destroy and interfere with the Desplaines as a navigable stream. Avers that its said dam does not and will not in any wise interfere with the purpose of said Act of the Legislature of Illinois of December 6, 1907. Denies that it will overflow or destroy the value of the land of the state adjacent to said river, or the use of said 90 foot strip, or impair the benefit of the same to said canal. Denies that it will destroy the feeder of the said canal and that it will work a loss to said canal, or the state, or the people thereof. Admits that the agreement. Exhibit A, purports to give rights as therein set forth. Denies that any of the provisions thereof were beyond the power of the said commissioners to grant; 151 avers that at the date thereof said commissioners had full power to grant the rights, etc., granted thereby. Admits that Exhibit B purported to convey an interest in said 90 foot strip in the Kankakee feeder, and to give a right of re- newal, and purported to be made subject to Exhibit A. Admits that each of the said contracts purported to be contracts on the part of the said commissioners with the said Griswold, his successors and assigns. Denies that by their terms they may be assigned one to one as- signee and the other to another. Admits that said contract was entered into with the mutual understanding that the party of the second part or his assigns in- tended to make use of the same in erecting said dam and develop- ing water power in said river; denies that the same amount to a lease of water power rights on, or of lots and lands connected with water power on the Illinois and Michigan Canal. Admits that the said lease and contract were not entered into upon notice by publication; that they were not limited to a period of ten years; denies that such fact was contrary to the provisions of an act entitled ‘L^n act to revise the law in regard to the Illinois and Michigan Canal, and for the im])rovement of the Illinois and Little AY abash Divers,” approved March 27, 1871, and acts 152 amendatory thereof, and in particular to provisions of clause six of Section 8 of said statute as amended by the act ap- 151 proved June 19, 1891; denies said lease and contract were beyond the powers of the commissioners to enter into or that the same were null and void. Denies that treating said instruments as leases of water power, they are subject to the power of the state to resume, without com- pensation to defendant, or the power of the state to abandon or destroy whenever in the opinion of the Legislature the work l)y the construction of which the water power privileges shall have been created shall cease to be advantageous to the state. Denies that Clause 6 of Section 8 of the act a]i])i*oved March 27, 1874-, as amended by act approved June 19, 1891, applies to the premises so leased by said instrument; avers that said act only authorized the abandonment or destruction of works over which the State Canal Commissioners have control. Denies that the opinion of the Legislature that such work has ceased to be advantageous to the state was expressed by the Act of the Legislature of December 16, 1907, entitled, ^‘An act recognizing the Desplaines and Illinois Eivers as navigable streams, and to prevent obstruction being placed therein, and to remove obstruc- tions now therein existing.” Avers that the act last nien- 153 tioned has no reference to any work connected with said canal over which said Commissioners or the Legislature has any au- thority or control. Denies that the said contract was a further lease for the pur- pose of enabling the assignee to develop and create water power; avers that same was merely a flowage contract and not necessary to be made in conformity with the provisions of the statute last above cited. Denies that the Kankakee feeder was an integral part of said canal, or that said agreement was beyond the power of the com- missioners to make, but on the contrary thereof said feeder has long since been abandoned, and was wholly unnecessary for the operation of said canal. Admits that said lease. Exhibit C, contained a provision reserv- ing to the commissioners the right to cancel lease and recover pos- session of said land whenever in the judgment of said commis- sioners or proper officers of the state, at such time having charge 152 of said canal property, tliey shall deem the interests of the state required it to re-possess said property for state purposes; denies that said power of revocation and cancellation may be exercised by the Legislature; denies that same was exercised by the act 154 of December 6, 1904, above referred to. Denies that the exer- cise of the powers, etc., conferred by Exhibit C will create obstructions in the Desplaines Eiver. Admits Exhibit J purports to convey lands therein described and in terms includes lands situated outside of the alleged meander line to the said river, and that it purports to be subject to the terms of Exhibit A and Exhibit B. Denies that the said lands and lots are lands and lots connected with the water power privileges. Denies that Exhibit A and Ex- hibit B purport to convey and create water power privileges. Admits that said advertisements thereof did not designate said premises as water power privileges, or limit same to a term of ten years. Denies that leases of water power privileges were at the time of execution of said lease limited by law to a term of ten years. Avers that by clause 6 of Section 8 of the act of March 27, 1874, as amended by the act of April 21, 1899, the commissioners were given power to lease water power and lands and lots con- 155 nected therewith for period of twenty years, and power to provide for extension of any lease from time to time. Denies that Exhibits A and B were beyond the power of said commissioners, that the same were leases of water power, etc., that they were subject to any power of the state to resume or to aban- don and destroy; denies that the opinion of the Legislature that the work ceased to be advantageous to the state was expressed by act of December 6, 1907. Admits that Exhibit K conveyed to said Griswold, his succes- sors and assigns, the right to maintain a line of poles along said canal from the west line of said Section 25 to Eobey street in Joliet, and from the same point in Section 25 to the west limits of Morris in Grundy County; admits that said lease was made upon the same day as Exhibits A and B; that it was for the purpose 153 of transferring and conveying electrical energy by the said 156 proposed line of poles; denies that it was subject to infirmi- ties alleged in said bill as to said Exhibits A and B. Denies that said contract, etc., were entered into on an inade- quate consideration; avers that the consideration paid by said Griswold to said Commissioners was adequate and the full value of the rights thereby granted. Avers that the granting of the temporary injunction herein with- out bond has resulted in irre])arable injury to this defendant, and the taking of property without due process of law, in violation of the 14th amendment to the Constitution of the United States and Section 2 of Article 3 of the Constitution of Illinois. Denies that complainant is entitled to the relief prayed for or any part thereof. Prays the same advantage as if it had pleaded or demurred to the bill; that the temporary injunction be dissolved and that defendant be dismissed with its costs. Endorsed: Filed this 30th day of March, 1908, Fred S. John- son, Clerk. 157 General replication filed April 15, 1908. 159 Order of April 20, 1908, requesting the Honorable Julian W. Mack, one of the Judges of the Circuit Court of the 160 County of Cook and State of Illinois, to hear this cause. Placita. Pleas before the Honorable Julian W. Mack, one of the judges of the Circuit Court of Cook County and State of Illinois, holding a branch of the Circuit Court of Grundy County, at the request of the Honorable Samuel C. Stough, one of the judges of the 13th Judicial Circuit of the State of Illinois. Present, said judge, Julian W. Mack, Fred S. Johnson, Clerk; Charles F. Hanson, State’s Attorney; Thomas Steele, Sheriff. 161 Decree Entered June 27, 1908. Be it remembered, that on, to wit, the 27th day of June, A. D. 1908, the following among other proceedings were had, made and entered of record in said court, the Honorable elulian W. Mack, one of the judges of the Circuit Court of the County of Cook and 154 State of Illinois, holding a branch in and for the County of Grundy and State of Illinois, which said proceedings are in the words and figures following, to wit: The Economy Light & Power Co. This cause having come on to be heard on final hearing upon the ])leadings and upon the depositions taken and filed herein and upon the evidence taken and heard on behalf of the parties respectively in open court and the court being fully advised and having heard argument of counsel it is ordered, adjudged and decreed that the information or Bill of Complaint herein be and it is hereby dis- missed for want of equity without prejudice however to the right of the State of Illinois to hereafter claim in any future proceed- ing that the provisions of the lease (in said Information men- tioned and made Exhibit B thereof) made by the Canal Commis- sioners of Illinois to Harold E. Griswold under date of September second, 1904, relating to the making of renewal at the expiration of the term of said lease are void and of no effect. Whereupon the complainants pray an appeal to the Supreme Court of Illinois which is hereby allowed and time is granted 162 and leave is given to complainants to file a certificate of evi- dence by September I5th, 1908, and said appeal is allowed without bond. Enter Julian W. Mack, Judge. June 27, 1908. 163-205 Orders continuing hearing of case from day to day dur- ing trial on the following days, to wit, April 20, 21, 22, 23, Circuit Court of Grundy County^ March Term, 1908. The People ex rel Charles S. Deenen and AVilliam H. Stead, Atty. Gen., vs. 155 22, 25, 26, 27, 28, 29, and June 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 15, 16, 20, 22, 23, 24 and 25. 206 Order of June 27, A. 1). 1908, adjourning March term of said court from court to court in course. COMPLAINANT’S DEPOSITIONS. 209 Deposition of Geo. W. Peed. * (Filed March 20, 1908.) Venue. Caption. Notice to Isham, Lincoln & Beale, counsel for defendant. Notice that on 26th day of Pel)ruary, 1908, at 10 A. M*., at the home of Geo. AV. Peed, coin})lainant would pro- ceed to take deposition of said Geo. AY. Peed. To commence at 10 A. M. and to be continued from day to day until completed. 210 Said complainant deems the testimony of said witness nec- essary in said cause. Signed by counsel for complainant. 211 Acknowledgment of receipt by Isham, Lincoln & Beale. Com- missioners’ introduction. That said witness was first duly sworn. George AV. Peed, a witness for complainant, testified as follows : 213 I live in Bradford, Stark County, Illinois. I will be eighty- 214 four years old the 2nd of March, 1908. I was born March 2nd, 1824, in Clark County, Indiana, near Terre Haute. I came to Illinois in 1829, to what was called Peed’s Grove, in AYill County. My father settled in that place and bought the land there and it was called Peed’s Grove. It was nine or ten miles from Joliet, pretty near south, and three or four miles 215 from the Desplaines Piver. I lived with my father. I was only four or five years old then. Father bought and sold land. At one time he was considered worth $100,000, which was a good deal of money them times, but he soon lost it. AA^e were there all the time except a short time we went back to Indiana during the Black Hawk AYar (1831). AYe stayed in Indiana about four months and came back in the fall of the year. AA^e 156 Reed, — Direct Exam. — Continued. came back to where my father founded a site where Joliet now stands and he built a log cabin and started to construct a 216 dam and mill. It was in 1832, in October or November. We built a cabin there, about four rods from where the old Na- tional Hotel stands now. Mr. George H. AVoodruff, one of our old historians, had a drug store there across the street for forty years before he died. Father was digging a race and con- 217 templating building a mill for grinding corn and wheat. He began building a dam in the river near the south end of the Jefferson street bridge. We lived in Joliet until 1836 or 1837 and then moved back to our old farm at Eeed’s Grove. In 1840, or a little later, my father moved to Winnebago County with me and in a year or two we returned to Eeed’s Grove. I left Eeed’s Grove in 1855 for good and went to Mercer County, farmed same and settled a canal claim. I farmed in Mercer County 218 a couple of years and came to Stark County in 1857 and have lived on my farm here and here in Bradford ever since ex- cept three ^mars that I was in the army. I owned my farm in 219 Stark County and do now. After coming back from the army I moved to Bradford and engaged in mercantile business, continuing in it for over thirty years. My money is still in 220 the business, as a silent partner. AAJien we lived in Joliet and Will County there didn’t seem to be many folds in the river. I don’t remember of crossing at but two or three places in the nine miles of the stream from there down, and that was in low water. One ford was just below a little islet about 150 yards below my father’s dam. Along in the summer, in the dry or low stage of the water it would come up over the wagon hubs, pretty near up to the wagon box, in fording it. There was an- other ford about three miles down, just below an islet. That was fully as deep as the other. It did not seem to be a shallow riffle at all, but we picked it out for a good smooth ford, the best that we could find. There was one jnst about a mile east 221 of Channahon. ANas similar to the othei’s, about the same depth. I saw but little difference. There were but very few ])eo]Je there then and they forded generally when they could. Some forded when it was ])i*etty dee]); some crossed in skiffs and little boats they had. I don’t remember them having a ferry boat. There was no bridge except a foot bridge ])ut up on long 157 slabs in the upper part of the town. They had that one season. In high water it was between a quarter and a half a mile wide; in low water it was not near so wide. 1 went up and down the river fishing a good deal while living at the point now 222 Joliet. During the first year of our work there, when father had his dam partly in, one day we heard music on the river and I saw a boat coming down the river with some people on it. They were playing on a long horn of some kind and seemed to be enjoying themselves bully. They came right along and went on through and down the river wdthout any trouble whatever. It seemed to me, as far as I can remember now, that it was a kind of a flat boat or scow or maybe a ferry boat. It must have been about 30 or 40 feet long, maybe as long as 40 feet, and Ifl to 20 feet wide. It looked to me like it was al)out 4 feet deep 223 and drawing about 2 to 2 1 feet of water. It might have been an old boat that this family had bought up north in Wis- consin or some place and was going down south on. They said they were going to a warmer country and that it was too cold up north for them. There were five people on the boat anyway, some men and some women. They had farming utensils and bed clothes, chairs and such like, sacks of provisions and carried a pile of such things as a family would have. We were four or five rods from them. That must have been about 1833 or near that. I have nothing down by which to fix it except the Indian war and one thing and another that I remember along about then. I observed that boat for ten or fifteen minutes, I suppose. I saw it coming from up the river for half a mile and saw it go down for half or three quarters of a mile. It was propelled just by the current. I suppose they had paddles or poles to keep it from the shore and off the rocks. I did not 224 see the boat have any trouble whatever in going down the river. They said they had gotten along nicely. I can’t remem- ber any other boats except skiffs. They passed up and down the river without any difficulty. By small boats I mean skiffs, scows, flat boats and the like. I wouldn’t think there would have been any difficulty in using them all the time, at all seasons. . During most of the year the Desplaines Eiver was of sufficient depth to permit the navigation of boats for com- 158 Reed, — Cross-Examination. mercial purposes. There might have been a drought or low water and at that stage it would not have been safe, but as a general thing through the biggest part of the year it took such boats as I speak of up and down without any trouble. I know that to be a fact from my knowledge of the depth of the river, as I ob- served it at that time. That is the way I looked at it — the 225 depth of the river. I remember one time when I was living at Reed’s Grove, before I moved south in Mercer County, that my brother was down at the river and got some wheat from a man who had gotten the wheat wet in transporting it in a boat- and was selling it to the farmers. My brother fetched home five or six bushels and we spread it out on sheets and quilts to dry and use it. It was spoiling as it was, and we had to dry it to keep it from spoiling. Q. How did that wheat get wet? Objected to by defendant on account of calling for a con- clusion, not a matter of knowledge to the witness. (Ruling on said objection by trial court ‘‘Objection sus- tained.”) Said ruling recorded on Trans, p. 1805. 226 I won’t swear where it was they were taking it, whether Ottawa or Chicago. They were going to market. I have no means of knowing that. I would think it was about 1842 or 1843. It must have been pretty near that date. That is the only date I am guessing at, for when I left the county it was about 1850, ’51 or ’52; it was before that likely that this happened — two or three years, maybe more. It seems to me that the dam my father was building was on the south side of where the Jef- ferson street bridge is. Things change around so on the river and canal a person gets off the track. Cross-Examination. 227 Mr. McKee bought the land from my father. He finished the dam and put up the mill. It was called McKee’s dam. I couldn’t tell how deep the boat went into the water, only by the sides that showed out of the water. It was a fiat boat. I don’t think it was decked over, except a double flooring in it maybe six 159 inches from the bottom to keep the goods off the bottom. If I remember right it didn’t have any upper deck. That was not cov- ered over. It didn’t seem to me to be like a ferry boat exactly, that is, covered over the top. Q. You said you never saw any other boat going up and down the river except skiffs, did you I A. That is all I remember of. I was not on the river very much then. There wasn’t many skiffs going up and down, only just what was used in Joliet for the purpose of crossing the stream. I didn’t see that I can swear to, freight or passengers being cai-ried up or down the river. The only thing I learned about the boat was that the grain got wet and the man who had it was selling it out l)ecause he couldn’t take it on to market. On account of it being wet it would spoil 228 and not sell on the market. I learned that from my brother He went down to the river and he met a man who had gotten some of the wheat, who told him the wheat was wet and there was a man on the river in a boat selling it out, so my brother went and bought some. I heard it talked in the neighborhood about it being too bad that the wheat got wet. My brother was about 20 or 21 years old when that happened. 1 was not so familiar with the Desplaines Kiver in 1833 and 1834 as I was before that. I remember the Beard dam at Beardstown, across the river. I don’t remember the date. It was about the time the feeder dam was put across the Kankakee. That was several years after my father was building the dam at Joliet. I don’t rememl)er 229 Norman’s dam. I don’t remember any falls or anything that you could call rapids between Joliet and the mouth of the river. There were some places not so deep and some places the water was pretty swift. I don’t remember any rocks across the channel. It was a pretty smooth limestone bottom. Those fords I think they did aim to find, generally, just above riffles. I don’t think there was much ditference between the fords and the places below, not enough to do any hurt. I never went by boat down the river from Joliet to the mouth of the stream, not the full way; I have partly. I remember the grist mill at Treat’s Island. I 230 couldn’t tell you just where the place was that that wheat was sold. The people on that boat with the farming imple- 160 Reed, — Re-direct Examination. ments said they were going to a warmer country. That was in the fall of the year. We raised grain on the farm at Eeed^s Grove. When we got to taking it any place we took it to Chicago by ox teams. We met other people. The roads were full of teams going and coming, some from Sangamon County, as far as 120 or 130 miles. I remember an old sailor along the road with me one day. He said ^‘Do you ever drink?’’ I said ^‘Yes, sometimes.” He said ^‘AVell, we will have something to drink.” We met an old fellow coming along cracking up his horses and he says ^^Here, hello, give us a drink.” He says haven’t got any whiskey.” 231 Pretty soon we met another fellow. He says ‘H guess I have,” so he stopped his team and we had a drink out of a jug. We were all jolly fellows at this time. It runs in my mind that that boat with the grain came from the Bull Bony settlement (Bour- bonnais Grove), a settlement on the Kankakee Kiver. That was way up near Kankakee city. Kankakee is right where the Bull Bony settlement was then I think. I never used the river for transporting grain. I don’t remember the Havens or Adams dam. I couldn’t say when that bridge was built. I remember one bridge was built and went off with high water along the first part of the settling there, but I couldn’t give the dates as to the building of the bridges. Those people in that boat with the farming imple- ments said they were hunting a warmer country. I suppose they went on down out of our reach. 232 Re-direct Examination. Q. Was the water in the Desplaines Kiver from Lockport to the mouth of the river at the time you lived at Joliet deep enough at all times and at all seasons of the year for boats drawing from three to four feet of water to navigate up and down the river without trouble? Objected to by the defendant as calling for a conclusion. Examination permitted subject to objection. A. Well, I would think it was, but I would not say that it was at all seasons. I believe it was sufficient for boats drawing three feet of water during the most of the year. 161 Q. You base that conclusion from your knowledge of the depth of the water in the Desplaines River? A. Yes, sir. (Killing on said objection by trial court. Objected to by counsel for defendant. ‘‘Counsel for Complainant. The witness in response to the cross-examination says that he made the trip part of the way on the river and stated that he had lived there on the river for five years; that his father was building a dam on the river and that he took particular notice of the river at the time they lived there at Joliet. I think it is sufficient to enable his answer to go for what it is worth, particularly when counsel on the cross-examina- tion proceeded to ask him whether he made use of the river for transporting grain.’’ “The Court. He said he had not. Objection sustained.” Said ruling is recorded on Trans, p. 1826.) The fords I have spoken of we aimed to have at the shallowest places. Re-cross Examination. That is, if the shallowest place wms very swift it might be that we could select a place not so swift just above. I can’t say that that was the case in these instances. We endeavored to get the best bottom we could. In the extreme dry seasons I never remem- ber having knowm it being so low as not to be 2 to 2| feet deep 233 in the shallowest places. I did not go up the river from Joliet afoot nor follow it in all its windings. I used to see it fre- quently. There might have been shallower places, but I don’t think so. (At the close of the reading of the deposition of the witness Keed before the trial court. Counsel for Complainant. “You now having heard the re- cross continued by the counsel, containing the answer ‘I never re^ member having known it to be so low as to be two and two and one-half feet deep in the shallow places, I would not say that I was familiar with it all, but I used to see it frequently, there might have been shallower places than I described, but I do not think 80 .’ I think his answer on the river as a whole ought to be ad- mitted for what it is worth. The Court. No. I will sustain the objection.” Said ruling is recorded on Trans, p. 1826.) 234 Here follows stipulation to waive the signature of said wit- ness. 235 Here follows certificate of Commissioner James H. Eem nick. 237 Fee Bill. 240 Deposition of Gr. H. Erhard. (Filed March 18, 1908.) Commissioners’ introduction. On the 16th day of March, 1908, at the offices of Skidmore & Walker, in the City of Columbus, County of Cherokee, Kansas, the said deposition was taken. The said G> H. Erhard was first duly sworn. 240 George H. Erhard, a witness for complainant, testified as follows: Direct Examination. 1 am over 69 years old; live at Sherwin Junction, Cherokee County, Kansas. I was born in Joliet, Will County, 111., on 241 Nov. 22, ’38. As a resident I know of the plaintiff, the Peo- ple. I know of the defendant. I know of Mr. Allen, one of the parties connected with the defendant’s business. I resided at Joliet continuously until 1893, when I moved here. After living here three years I returned to Joliet and remained until ’99, when I removed my residence here permanently. I knew the Desplaines Eiver since I was 7 years old. In 1845 I lived right on the bank of the river and went swimming and fishing very frecpiently in it; saw it every day up till 1860. The Desplaines Eiver had different stages called high and medium stages. In the high and medium stages of water any raft or boats could run up and down the river at any such seasons when the river was not frozen, I would say from Lamont down to 163 Dresden Pleiglits. This is as far as I know positively that such rafts or boats could be propelled in the Desplaines River. Dur- 242 ing the years I lived on the Desplaines and saw it daily there were high and medium stages of water. It was generally high during the spring and fall seasons. I would say those high and medium stages would continue probably six months or more of the year and that the water was much higher before the year 1848 than thereafter as the same was impeded and prevented from the natural flow by dams and other obstructions, and the cultivation of the soil and tile drainage caused the water to escape faster and in a larger flow than before. Before 1848 the stream was a good-sized river and I have fre- quently seen cattle swim the river in the summer time across to Brushy Island and the entire stream at that time was quite deep, If we did not have a dry season we would have a good stage of water all summer, and generally there was three or four months in the latter part of the year that the high or medium stages con- tinued to exist. 243 During the time I resided on the river I saw small boats and rafts going upon the river. The boats went up and down the river and the rafts went down the river. They came, so far as I know, from Lamont, Cook County, Illinois, and floated on the river to south of Joliet and to the Hayden saw-mill. I fre- quently saw the boats and rafts come into the mill containing hard- wood for manufacture. I often heard of merchandise being shipped on the river, but have no positive knowledge of such trans- action. I remember that my brother-in-law, Jacob Adler, of Joliet, fenced a pasture across the river and was compelled to put gates across the Desplaines just below the city limits of Joliet, and that in erecting such fence he was required to and did put in a swing- ing gate in order to let the boats and rafts go up and down the river. The river at that time was regarded as a navigable stream and used for such purposes and for that reason he was required to use swinging gates so that the boats could go up and down the river. I was often in the river swimming and was around it fish- ing and knew it well from Lamont down to where the Kankakee and Desplaines form the Illinois River, whicli was commonly known as the Channahon district. 164 Erhard, — C ross-Examination. Cross-Examination. 244 I think it was in 1847 or ’48 that the upper dam was finished in Joliet. Then there was a dam right on Jefferson street. That was there before my recollection, which was torn away a few years ago; the Haven’s saw-mill and grist mill dam south of Joliet,. I don’t remember when that was built. I think that has been torn away also. It was built when I was a small boy. I knew of there being some rapids or riffles in the Desplaines River near to the mouth at Dresden Heights. I don’t know their length. It was a great fishing place. I saw them often. I have been across the rapids at Smith’s bridge. Am well ac- quainted with the country and rapids around Brandon’s bridge. I have also been at the rapids at Treat’s Island. I cannot state their extent; have no knowledge, could only guess. I cannot 245 say just what the depth of the water was prior to 1900 over these rapids. I know that there was generally a good body of water in the river before they began to obstruct the river and drain the country. I never attempted to run a skiff over those rapids either at high or low water mark. I have seen skiffs come up and down the river at nearly all seasons. I don’t know where they came from or went to. Xo, it is not true that the only boats ever used in the Desplaines River were skiffs used occasionally in pools or deep places by fishermen or hunters. I never personally saw boats used for commercial purposes ex- cept carrying produce, grain or freight navigating the river, ex- cept I have seen the rafts come down the river as I have stated. 246 I am not able to say positively, but to the best of my judg- ment the curves, slopes and declivities in the river did not pre- vent vessels from going up and down the river when the same was at a high or medium stage of water. The high water stage would probably last a month each in the spring and fall, and the medium stage, I should judge, would last for about six months, and the remainder of the year, if it was a fair season, we would have a medium stage of water most of the year, but if it was extremely dry the water would get (]uite low, but as for the depth of these rapids at any time I am unable to state. 247 Here follows certificate of A. H. Skidmore, commissioner. 248 Here follows notice of taking said deposition, dated March 9, 1908. Acknowledgment of receipt of notice. 248-251 Interrogatories of complainant. 252-254 Cross-interrogatories of defendant. 255 Dedimus. Depositions of Alexander McKenzie, T. E. Burton and Wm. Lorimer. (Filed March 23, 1908.) 258 Notice to Isham, Lincoln & Beale and Frank H. Scott, counsel for defendant, of taking of depositions, on Tuesday, the third day of March, A. D. 1908, at 10 a. m., before John P. McMahon, a notary public, at the committee room of the Com- mittee on Elvers and Harbors of the House of Representalives of Congress, in the City of Washington, D. C. Commencing at 10 A. M. on March 3rd and continuing from day to day until com- pleted. Said complainant deems the testimony of said witnesses 259 necessary in said cause. Witnesses’ name, Theodore E. Bur- ton and other witnesses. Signed by complainant’s counsel Acknowledgment of receipt of notice by Isham, Lincoln & Beale. ‘‘Stipulation.” It is stipulated that the date of taking the depositions above referred to, be changed a statutory length of time for notice is waived, and said depositions may be taken commencing Feb- ruary 25, 1908, at 12 o’clock noon, and that such adjournment thereof at that date as may be by the officer taking the same and otherwise same to be pursuant to said notice above, and all with- 166 ! out i^rejudice to other outstanding notices, and the taking of depo- sitions thereunder. W. H. Stead, Walter Eeeves, Merritt Starr, For complainant. IsHAM, Lincoln & Beale. 260 Commissioners^ Introduction. The depositions of Alexander McKenzie of AVashington, D. C., Theodore E. Burton of Cleveland, Ohio and AVilliam Lori- mer, Chicago, Ills. Said witnesses being produced, sworn and examined on oath, testified as follows: General Alexander McKenzie, a witness for complainant, testified as follows : Direct Examination. 261 I am 63 years and nine months old; residence AA^ashington, D. C.; occupation. Brigadier General and Chief of Engineers, United States Army. I have been in the service of the Government of the United States about forty-four years, not including the four years at AA^est Point. I am a graduate of the AA^est Point Military 262 Academy, of 1864. My official position is Chief of Engineers, United States Army. I have not been in any other service in the United States Government, excepting the Engineer Corps. I commenced my service in Arkansas and the Indian Territory during the latter part of the Civil AA^ar; subsequent to that, for a time, I was on duty in AVashington, and later on the lower Alis- sissippi. Following that I was on duty for a number of years in Milwaukee in connection with the improvement of certain lake harbors, and subsequently to that at AAhllett’s Point for a num- ber of years with the Battalion Engineers and School; later than that at Detroit and at Louisville, in charge of various river and harbor works; then at Eock Island for about 17 years, and from there to AVashington, where I have served for about thirteen years. During the seventeen years that I was stationed at Eock Island, Illinois, I have had under my jurisdiction the upiier Afississippi 107 River, which did not include directly the tributaries. The 263 only improvement that I had under my charge at that time was the upper Mississippi River from St. Paul to the mouth of the Missouri River. T have necessarily made a study during these many years of my service of the various rivers and harbors of the United States; principally 1 might say, though with regard to many of them, through the reports submitted by other officers. All these re- })orts come to our Department for consideration from time to time. I know the Desplaines River in Illinois, principally through the records and reports ; not jiarticularly, personally. I have 264 seen it. The Desplaines River is regarded by the War De- partment of the United States Government, officially, as a navigable stream under the law. As to what is the minimum depth or water in a stream on which profitable commercial navigation can he had, — can hardly be answered definitely, because there are other considerations be- sides the depth which might be involved. In certain streams a very small depth, even a depth of one foot can, furnish profitable navigation, all other conditions favorable. Suppose that the boulders, if any, in a stream, be removed, and where rapids exist a lock and dam be put in, then what the minimum depth is under which or on which, profitable corn- 265 mercial navigation could be carried on, — that could best be answered by giving such examples as we have. The plans now contemplate a six-foot navigation on the upner Mississippi River. Up to within a recent time they contemplated four to four and a half-foot navigation, on which it was considered that a profitable navigation might be conducted, although that is a question of fact that could not exactly be predicted. There are a number of rivers in the south, the upper waters of which have as little as two feet of water, upon which business is transacted. The document now handed me, which is a record of Document numbered 264, of the Fifty-first Congress, first session, — House of Representatives Document, purporting to be a survey made by 168 McKenzie, — Direct Exam, — Continued. Captain W. L. Marshall of the Corps of Engineers, and transmit- ted by Eedtield Proctor, Secretary of War, to the Speaker of the House of Eepresentatives, — this is an official document, pub- 266 lished by the Government of the United States, and to the best of my knowledge and belief is a copy of the original document. As to what constitutes a navigable river, as the same is under- stood and acted upon by the War Department of the United States, — the consideration given by the War Department in a question of this kind is based on the decisions of the Supreme Court; their description of what constitutes a navigable stream is in general terms that a stream is navigable in law when it is navigable in fact, and it is navigable in fact when it can be utilized for the commerce of the locality. 267 Obstructions in a river, as I understand the decision of the Supreme Court, which would not completely shut oft all pos- sible navigation, would not interfere with the navigability in law, inasmuch as the floating of logs or the floating of small boats which can frequently pass over rapids, is understood to constitute navigation. I understand that such a river is still, under the law, considered a navigable water. I might add that the War Depart- ment has never officially considered it has any authority to de- clare a river unnavigable. The fact that the volume of water in a given river is such that it does not afford at all seasons of the vear sufficient water for navigation does not destroy the navigable character of the river, according to the custom of considering the matter in the War Department. The four volumes, on the back of which I find the woi*ds: ‘‘Ee- port of the Chief of Engineers, United States Army, Volumes Numbered 1, 2, 3 and 4, 1884,” are official documents, and to the best of my knowledge and belief copies of the original docu- ment. 268 The book now handed me, entitled: “Annual Report upon the improvement of the Harbors of Chicago nnd Calumet and Illinois and Calumet Eivers, Illinois; Location of Illinois and Mississippi Canal, and Operating and care of the Lagrange Lock 169 in the Illinois River, in charge of W. L. Marshall, Ca])tain, Corps of Engineers, United States Army, being appendix J. J. of the Annual Report of the Chief of Engineers for 1890,” is an official document of the Government of the United States, and is to the best of my knowledge and belief a copy of the original docu- ment. The document now handed me, entitled: ^‘Executive Document Numbered 16, Fortieth Congress, first session. House of Repre- sentatives,” purporting on its face to l)e a survey of the Illinois River — a letter from the Secretary of IVar communicating the report of Brevet Major General J. H. IVilson on the survey and examination of the Illinois River,— is an official document of the Government of the United States, and is to the best of my knowl- edge and belief a copy of the original document. 269 The volume now handed me, on the hack of which a[)pears these words: ‘‘Survey of Waterway from Lake Michigan to the Illinois River at La Salle, Illinois,” and apparently being a volume of maps, — is an official document of the United States, and to the best of my knowledge and belief a co]:>y of the original document. The volume now handed me entitled: “Document Numbered 263, Fifty-ninth Congress, first session. House of Representa- tives,” purporting on its face to be “A Report upon Survey, with Plans and Estimates of Cost, for a Navigable Waterway 14 Feet Deep from Lockport, Illinois, by way of Despl nines and Illinois Rivers, to the Mouth of said Illinois River, and thence by way of the Mississippi River to St. Louis, Missouri, and for a Navigable ANaterway of 7 and 8 feet depth, respectively, from the Head of Navigation of Illinois River at La Salle, Illinois, through said River to Ottawa, Illinois,” — is an official document of the United States Government, and is to the best of my knowledge and be- lief a correct copy of the original. 270 The volume now handed me, purporting to be “Reports upon Transportation Routes to the Seaboard,” being “Ap- pendix C C of the Annual Report of the Chief of Engineers for 1875,” is an official document of the United States, and is to the best of my knowledge and belief a copy of the original. 170 il/ cKenzie,— C ross-Exa m i n a t i on . Cross-Examination. I cannot state the points at which I personally saw the Des- plaines Eiver, and I can only say that I have seen it. I have not seen it sufficiently to know any of its details and peculiarities. My knowledge of the river, of its directions and slopes is from the Government reports and Engineer’s reports. I have more or less familiarity with the slopes of the river and the depth of water 271 and flow in it. I could not give the figures definitely to you as to the slopes of the river between Joliet and the mouth. The slopes affect the question of navigability materially. That is it would for up stream navigation. Of course, there are streams where the navigation would he all one way, and so the question of slopes would not affect the legal proposition so much. The limit of slope in fact for the purposes of navigation is a ([uestion of the current and the foundation and obstructions. There are so many conditions involved, that it is very difficult to 272 answer. I have in mind special cases where boats do navi- gate certain currents under certain conditions, but it may be because there is plenty of water there for them to operate in, or some other conditions. They have on the Eock Island Eapids slopes which at times give an estimated current of seven miles per hour, which boats do operate on. There is also on the Falls of the Ohio, — I do not know what the slope is, — but they do ope- rate boats in passing from one side of the river to the other, and navigate steep slopes. Interrogatory 37th: Now one of these reports that Mr. Eeeves has that you identified, is the Engineer’s Eeport made in 1901 to 1904, that is, I refer to the report published in 1905, of survey for a deep waterway; and I call your attention to the fact that in that report it is shown that during the low-water season of 1901, the fall in the Desplaines Eiver between Jackson street and McDonough street in the City of Joliet, a distance of 5,000 feet, a fall of nine feet in this five thousand feet, being a fall of 1.8 feet per thousand feet. Now, I ask you if it would be ])ossible for open-water navigation upstream to be carried on for the purpose of commerce over that stretch of five thousand feet with that 273 slo])e? A. I could not say, exce])t that boats do at times ])ull up on lines when the water is too steep to use their natural 171 power. I mean, l)y putting out lines aliead and hauling up the boats by tlie process known as cordelling. T would not like to state the maximum slope on which that could be done. • Interrogatory 40th: I call your attention to the fact that this report to which I have referred says that in the high water sea- son of 1902 and 1904 the slope in the l)esplaines Kiver, between Jackson street and McDonough street was eight feet in four thou- sand feet, or about two feet per thousand feet, and ask you if you think it would be possible for pui’poses of useful commerce to nav- igate that portion of the river u})stream, or downstream either? A. Well, it would be undoubtedly difficult navigation, very dif- ficult navigation under those conditions, but whether it would be successful or not is prol)lematical, that is difficult navigation for steamboats and barges, and that class. It can not be said that anything of that kind is im]mssible. It would be very difficult, even if it was a gradual slope. 274 Without any artificial aids, simply a boat steaming, 1 think it would be so difficult as to be virtually not successful. Interrogatory 42 : Would the fact that there never had been any navigation of that particular stretch of the Desplaines River have some weight with you in making up your opinion upon that point. A. Well, I think it would with anyone. I do not know as a fact that there has never been any navigation on the Desplaines River between Lockport and the mouth. The matter has never been under consideration with me. I do 275 not understand that there is navigation there, that is, only stating from memory. 1 understand that it is not navigated. It is the impression that I have from the reports. I haven’t any definite information one way or the other. There are records in our office which say that at a very early day there w^as navigation on the river. I do not remember exactly the date. It was in the early days. Interrogatory 47 : Are you aware of the fact that from a very early day the river has had some dams in it from its mouth to Lockport Bridge, clear across the river, and which would be an effectual obstruction to navigation! A. Yes, sir. Interrogatory 48 : I call your attention to the fact that this re- 172 M cK e nz i e , — Cross-Exam . — C o 1 1 tii i ued. port, published in 1905, shows that between McDonough street, 276 in the City of Joliet, and what is called Brandon’s Bridge, a distance of about two thousand feet, the slope in 1901, during a period of low water, was 3.75 feet for this two thousand feet, or being about 1.88 feet per thousand feet, and that in the high water season of 1902 and 1904 the slope for that same stretch of river was about 1.1 feet per thousand feet. Do you think it would be possible for navigation for useful purposes of commerce to be carried on without improvement of that river over that stretch of the river? A. Under these same conditions upstream navigation wmuld be undoubtedly very difficult. I do not understand the Desplaines River to be navigable in fact in the sense as being actually navigated at this time. As I said before, we have some records which indicate that it was at one time, at an early date, used by a certain class of 277 boats. I may be able to refer to those records. I do not re- member how far those records go. I suppose that the kind of boats used were pole boats, or skiffs, and boats of that char- acter. The light in which we look at this is whether this river is navigable along the finding of the Supreme Court. We use our best judgment in coming to that conclusion. From the re- 278 ports which we have, I should judge that the river is not capable to-day of conducting profitable commerce, in the way commerce is usually conducted now. Whether it has in the past, or whether there was a time when it was, or not, I could not say. When we speak of the navigability, I can only say that a river, which will float a log is to us a navigable river, and undoubtedly the Desplaines River is capable of such navigation. 279 I do not think it is capable of carrying commerce now; whether the time ever was that the commerce made it capa- ble of being operated profitably T do not know. As to whether there are long stretches during several months of the year between Tmckport and its mouth when the water is not over twelve inches deep, T would not know without examining the record. Interrogatory 59: Do you know as a matter of fact there are times in dry seasons when there is scarcely any water in stretches of the river? A. I do not know that. 173 The Engineers’ Report published in 1905 relates to the pro- posed improvement of that river with locks and dams in connec- tion with the pro})osed fourteen-foot waterway. It was ])ioposed as a part of the plan suggested that some locks and dams be placed in the Desplaines River. 280 The Economy Light & Power Comj^any, or Mr. Charles A. Miinroe, })i*oposed to build a dam near the mouth of the Des- plaines River and filed plans for his work in my office at one time. As a result of the inesentation of those plans, which were simply presented for the pur})ose of seeing whether they were in har- mony with the plans for the improvement of the river, — it re- sulted in Air. Alunroe l)eing informed that under certain condi- tions they would harmonize with the plans for improving the river. Interrogatory hi: Is not it a fact that those conditions were to be met by Mr. Munroe — that ])rovisions should be made for a lock at the side of the dam, and that the Government should be given control of the pool to be formed by the dam? A. Those conditions mentioned were a part of the conditions ; I do not 281 remember full}^ what they were. As to rivers in the South, on which commercial business was transacted, I could not rememl)er the rivers just now. I do not mean to say that there is not to exceed two feet at many ])laces in the river, but there are shoals over which they pass. Interrogatory 66: Well, on those rivers, as well as on many rivers, a question whether navigation could be carried on would depend upon the slope to a large extent, as well as upon the depth of water? A. As I stated before there are so many conditions involved that it is difficult to answer. Interrogatory 67 : AVell, if you had two feet of water in a river and a slope of ten feet per thousand feet, it would be im- possible to carry on navigation, would it not. General ? A. As I said before, if there was an urgent necessity, there might be some way of carrying it on. I would not like to say that anything of that kind is possible. 282 Interrogatory 69: It would be impossible, would it not un- der navigation as it is carried on generally now, — it would be 174 McKenzie, — Cross-Exam. — Continued. impossible with the character of the boats that are now used? A. We have many cases of streams, which in my Department are classed as navigable streams, where there is nothing but log nav- igation. I do not recall the slope of the river between Lockport and its mouth, as shown by Major Marshall’s report, published in 1888, before the water from Lake Michigan was emptied into the Des- plaines Eiver. I have not the thought of it in my mind. 283 I cannot give any information as to whether before the water of Lake Michigan was turned into the Drainage Canal, the river could ever have been used for purposes of commerce. There was great difficulty in navigating the Eock Island Eapids at one time. Improvements have been going on there for over thirty years. They have been removing rocks and making chan- nels, and now they have built a lock at the lower end of the Eapids. Those Eapids are not continuous, they are simply a series of long pools, connected by rapids, so that the fall there is concentrated in a number of places. 284 S. T. Abert was United States Civil Engineer on duty with the Engineer Department. I could not say without referring to the records whether he recommended at one time the improve- ment of the Yadkin Eiver in North Carolina. It is my impression that there has been work done on said river by the Government, but wliat improvement has l)een made I could not state off band. I do not recall any of the data about this river. Major E. H. Euffner, now Colonel, is an Engineer Officer in the United States Army. I do not recall that he made a record of his o|)inion to the effect that the limit of slope for open river 285 navigation is about 18 inches to the mile. Colonel Eutfner is still a member of the Corps of Engineers, stationed at New Orleans. I could not tell whether the Yadkin Eiver is now used for pur- poses of commerce. The reports of the Chief of Engineers will show. The opinion which I expressed to Secretary Taft last year 280 was 1 presume in connection with a hearing that the Secre- tary had in regard to that river. T do not remember that I 17f3 fully expressed the question of the navigal)ility under the law. That was not the principal question involved at that time. That hearing, in a general way, was a protest on the part of Mr. Isham Randolph against the proposed construction of a dam by the Economy Light & Power Company at Dresdon Heights. As I rec- ollect, it was an informal presentation by persons representing the State of Illinois against the state being deprived of certain rights and authority in connection with the water power con- nected with the fourteen-foot waterway. 287 Well, I will say, the statements made at that hearing that the river was not navigable in fact, was my general thought as to the present condition, and was not made exactly in relation to the actual legal conditions. As I recollect in that matter, the Secretary in his finding, which was an improni])tu matter, made a reference to the fact, of non-navigahility, l)ut that was based prin- cipally on the presentation made by Air. Sna])]), and the fact (the Secretary did not have to decide whether it was navigable or not). That was not a ])art of the decision. Referring to these answei*s, as I have said, our Bureau of the War Department would not consider that they had any right to decide that a river was unnavigahle in law. The only way in which such a matter comes before us is where ]3ermits are asked for, and then the Secretary has to determine -the (piestion, and he will naturally determine on the safe side. In a general way, the policy of my department is to con- 288 sider all rivers navigable that could he improved and made navigable, where there is a prospect of their becoming a use- ful line of navigation according to the present day methods. R e-dj rect Examin at ion. Tlie surveys that are made of the different rivers and harbors of the United States by officers of the Engineer Corps, are all re- ported to the Chief of Engineers, and by him reported to the Sec- retary of War, and by him transmitted to the Congress. The AYar Department determines whether or not a river shall be regarded as navigable or otherwise, from whatever information may he 176 McKenzie, — Re-direct Exam. — Continued. available, and to a large extent from the reports above men- tioned. 289 Tlie War Department, of course, obtains a great many re- ports that do not go beyond the office of the Chief of Engin- eers. Where we find a slope in the river creating a current too rapid to be navigated, it is naturall}^ not a good river; it is still a river sul^iect to improvement. The way a place of that kind is treated, is by putting a lock in the stream, or in other cases, by cutting out a channel or smoothing it. Both methods are used. Well, the river, I should think, would still be considered a navi- gable river, even if there were occasional places where navigation was quite difficult. 290 The statement that in order to accommodate navigation and make navigation easier and better the rivers have been im- proved by the state or general government applies to a very large number of them. Take the Mississippi River, as that is import- ant. It was necessary to put a lock and dam in it. The necessity for this lock and dam, as in the illustration just given, does not at all detract from the fact of the navigable character of the river. In the case that I mentioned above these rapids, it was originally navigated by a special boat. In my reference to the early navigation on the Desplaines River, that was a very general statement I made, and not con- nected with the subject of cordeling. I simply stated that I have knowledge of that way of handling boats. In early days there 291 was no way of transportation hardly except by water. In the matter of cordelling, that is applied to either small or large boats. I remember the case of the expedition up the Yellowstone River a great many years ago, in which they pulled the boats u]) for miles. I recall that there was a survey and report made by Major liong about the year 1819 of the Desplaines River and transmit- ted to the Congress by John C. Calhoun, Secretary of War, in which the Desplaines River was reported as a navigable river, and advice was given as to how, by slight improvements, it could be made a great waterway for commerce; but I have not seen it for years. I do not recall the details. 177 In the Upper Savannah River, I know there were used what they called push boats on the upper portions of that river, which to-day would be considered almost useless for commerce. There is evidence that such boats propelled by poles, did carry cot- ton. 292 The Santee River is one of the rivers I had in mind when I mentioned some of the southern rivers, whose depth of water was two feet or less. The same condition is true of the Upper Tennessee River. T would not give the depths, but it is true it is a shoal stream. There are a number of cases of rivers of that sort in tlie southern states, that are now ]>eing navigated for navigation purposes, where the water is less than two feet. 298 In regard to the hearing before Secretary Taft in Febru- ary, 1907, according to my recollection, the statements with regard to the navigability of the river and the connection of the government with it, were made by Congressman Snapp. I do not remember anyone else, and they were probably adopted, except by the Secretary of War. Re-cross Examination. The only record made in regard to the navigability of the river, was when the question was asked the department. According to my recollection it was asked by the Attorney Greneral of the State of Illinois, and it was simply up to us to give an answer, and we recommended to the Secretary of War that he answer that the river was navigable. We did not mean to go any further than we did, we simply had to give an answer to the question asked. 294 I knew there were dams on the Desplaines River. In con- sidering the question of the navigability of a river, we are not influenced by the existence of dams which were put in without permission. No permission was obtained from the Government for the construction of any of those dams. No protest was ever made so far as I know by the Government against the construction or maintenance of those dams. My department has been 295 aware of the existence of dams in that river for a great many years. All those dams we knew were obstructions to any possible navigation of the river. 178 McKenzie, — Re-cross Exam. — Continued. Interrogatory llStli: Just to be perfectly clear about that hearing that was had before the Secretary of War in February, 1907, I hold in my hand what purports to be a copy of the pro- ceedings had upon that hearing, and I ask you. General, if the fol- lowing interrogatories and answers did not take place between you and the Secretary of War: Secretary Taft : As a matter of fact it is not now navi- gable (referring to the Desplaines Kiver). General Mackenzie: It is not now navigable. Secretary Taft: And if they sunk a 14-ft. channel in the river and affected private interests they would have to buy them, would they not? General Mackenzie : Yes. As Mr. Snapp says, these plans were brought here to' the War Department. They were looked over and compared, and the War Department wrote a letter stating that if they satisfied certain conditions they would be in accord with the plans proposed by the Board of Engineers for the 14-ft. waterway. I have a copy of the let- ter. Secretary Taft: But you are not seeking to exercise any authority over an existing navigable stream? General Mackenzie: No, sir. Secretary Taft: Or to grant a permit so as to protect the interests of the United States in the stream? General Mackenzie: No, sir. 29b Secretary Taft: Suppose they were to go ahead without coming here at all. You could not go into court, or could not, by an order of this department, prevent them from doing anything, could you? General Mackenzie: I do not think we could. Of course, under all the conditions, so far as they have gone, possibly w^e could call the attention of the Department of Justice to the matter, simply to have them consider it as a legal propo- sition. Secretary Taft: Where would ‘the Department of Justice get any power? General Mackenzie : Only from the general law — that in case of any violation of any law for the protection of navi- gable streams. Secretary Taft : Yes, but the Desphiines Biver is not a navi- gable stream, is it? General Mackenzie: It is not, to-day, sir. Secretary Taft: And it could not become so except by a declaration of Congress to carry work on it? General Mackenzie: That is it exactly. Secretary Taft: Then where do I get any power to deal with it at all? 179 General Mackenzie: I do not know that there is any, Mr. Secretary. Were those questions and answers given at that hearing be- fore Secretary Taft, as I have read them! Counsel fok Complainant. I object to this as being no part of tlie cross-examination and immaterial in this cause. A. I suppose, essentially so, but the explanation must go with this, with the fact that there was no question of a permit. There was no question as to the legal status of it, and there was no neces- sity for the Government to exercise the power of stopping any- thing. All they could do was to report it to the Department of Justice, which would consider the law in the matter. Interrogatory 115: I would like to get this thing clear, 297 General, so that I can understand it thoroughly. I gather that your opinion and position in the matter is this; that as a legal question, whether the river is navigable in law, or whether the United States has any right to regulate it, is a question that you cannot pass upon, and not intending to express any opinion except the United States and your department consider all rivers navi- gable until somebody proves them otherwise! Counsel fok Complainant. To that I object, as a statement not warranted by what the witness said. Counsel for Defendant. Do I state your position fairly. Gen- eral ! A. Essentially, yes. We do take that view on the ground that there is no authority outside of Congress and the court that can declare a river uimavigable. Interrogatory 116: So, on the other hand, you do not mean to say that when your department states this is a navigable river, it does not say that useful commerce can be carried on that river without improvement! A. We do not pretend to answer that question. Interrogatory 117: You do not pretend to say this; that com- merce can be carried on without improvement of the river! A. I do not pretend to make a statement in that connection. We con- sider it navigable in law. We do not consider it navigable in fact. (See answer to No. 49.) 180 Re-re-direct Examina ti on. The inquiry by the Attorney General of the State of Illinois as to whether or not the Desplaines Eiver was a navigable river, was about the 21st day of October, 1907. The document now handed to me is the answer of the War 298 Department to that inquiry from Attorney General Stead. The suggestion that that answer be given to the Attorney General was made from our office. Thereupon the letter, identified by General Mackenzie, dated “War Department, Washington, D. C., October 28, 1907,” ad- dressed to the Hon. W. H. Stead, Attorney General, State of Illi- nois, Springfield, Illinois, and signed by Robert Shaw Oliver, Act- ing — Secretary of War, — was received in evidence and marked “Exhibit A.” (Abst., p. 181.) (Objected to as being incompetent, irrelevant and immaterial, and the following stipulation was entered into between coun- sel) : “It is agreed between the parties that a carbon copy of a letter, dated October 21, 1907, purporting to be a letter addressed to Hon. William H. Taft, Secretary of War, Washington, D. C., and signed W. H. Stead, Attorney General, is a true copy of the letter to which ‘Exhibit A’ is a reply, and that said carbon copy is here- to attached marked ‘Exhibit B.’ ” (Abst., p. 181.) Re-re- cross Examin atio 1 1 . 299 There is a record in my department in regard to some ac- tion relating to Charles A. Munroe. To the best of my recollection, nothing has ever come to the de- partment from this Economy Light & Power Company. There is no application for the approval of the plans to the best of my recollection. The question presented by Mr. Munroe was whether the plan submitted would be in harmony with the work of improvement proposed by the Government. ‘‘Exhibit A.’’ Wak Department. Washington. October 28, 1907. John P. McMahon, Notary Public, D. C. Dear Sir: Answering your letter of the 21st instant, in wliich you ask to be informed whether the Des Plaines and Illinois Ki\mrs are navigable between Lockport and Utica; also whether the War Department has been called upon to pass u])on the right of the Economy Light and Power Company of Joliet, Illinois, to dam the former river, I beg to inforn/you that the Des Plaines and Illinois Rivers at points mentioned in your communi- cation are considered by the War Department to be navigable streams. There appears to be no record in the Department of any ac- tion relating to the Economy and Power Company of Joliet. Very respectfully, Robert Shaw Oliver, Acting Secretary of War. Hon. W. H. Stead, Attorney General, State of Illinois, Springfield, 111. -1 “Exhibit B.” “John P. McMahon, Notary Public, D. C. B— III. October 21, 1907. Hon. William H. Taft, Secretary of War, Washington, D. C. Dear Sir: A question has arisen in this department involving the ]>ro- position whether or not the Illinois and Des Plaines Rivers between Lockport on the Des Plaines and the village of Utica on the Illinois are navigable rivers. Will you kindly advise me if the Department of War has been called upon to ]iass upon the question as to whether or not said rivers are navi- gable rivers of the United States, and particularly if the De- partment has passed upon the question as to the right of the Economy Light and Power Company of Joliet, Illinois, to con- 182 struct a dam across the Des Plaines river just above the mouth of the Kankakee river. If your Department has passed upon and determined the question as to the navigability of those streams or of either of them, I wish you would send me a cer- tified copy of the finding of your Department. The cost of such certified copy, or copies, will he promptly remitted upon receipt of a bill therefor. Very respectfullv, W. H. Stead, Attorney General. L.— 4 303 Theodoke E. Burton, a witness for complainant, testified as follows : Direct Examination. My age is 56 years; legal residence, Cleveland, Ohio; by occu- pation attorney, though I have been here now for quite a con- siderable time. By here, I mean, Washington City. I am a member of Congress; I have been a member of Congress consecutively since 1895, and also from 1889 to 1891. Since 1895 I have been assigned to the Eiver and Harbor Committee, and have been chairman of that committee since December, 1898. I have made a study of the rivers and harbors of the United States 304 necessarily in connection with my position. Well, of course in the preparation of river and harbor bills and hearings, and considerable amount of attention here at Washington, and then I have visited most of the leading rivers of the United States and a considerable nmuber of the minor streams. I do not know how much time I have occupied in that^ — quite a number of months probably; that is, I have occupied in visiting. I was in Europe for four months at one time, investigating river navigation and have given some slight attention at other times. I went to Europe especially to study water transportation and things of that kind. I have been identified for about a year 305 past with the Inland Waterways Commission, appointed by the President, consisting of nine members. I was Clmirman of the Commission, made so by direction of the President of the United States, and also by the formal confirmation of the mem- bers. In pursuance of that appointment I have made a consider- able study and some examination of rivers and harbors and means of transportation in the United States. The examination, how- ever, was over waterwa^^s which I liad already visited. 306 They would include a ])retty large list of rivers: The Pen- obscot, Merrimac, Hudson, Delaware, Patabsco and James, the Inland Water Koute on the east side of North Carolina, the Con- garee, Santee and Wateree in South Carolina, the Savannah, the St. Johns, the Alabama, the Coosa, the Black Warrior, the War- rior, the Tennessee, the Cumberland, the Atchafalaya, the Sabine, the Neches, the Trinity, the Brazos; and, of course the larger riv- ers, the Ohio and the Mississippi; and on the Pacific Coast, the San Joaquin, and the Sacramento, the Columbia and the Snake. I have visited these different rivers with a view to their ex- amination and study with reference to their improvement l)y the Government, and for a study of the general problems. There are some minor rivers which I have visited and which I have not men- tioned in the list just given. I have seen the Desplaines Piver in Illinois, though I have never been on a boat on it. I have seen it at a place where the Drain- age Canal empties its water into the river, and upon a course where it parallels the Drainage Canal, though that is the diverted channel — the artificial channel alongside. 307 As to what constitutes a navigable river, of course, there are a number of definitions that you can find in a legal dic- tionary, but really defined it is a river which can be utilized for the profitable transportation of commodities of commerce by boats or otherwise. I do not think you can fix any standard as to what volume of commerce would be necessary to have on a river to con- stitute it a navigable stream. In 1902 I prepared a list of the rivers in the country which carry respectively less than 50,000 tons, and less than 100,000 tons, or a traffic worth less than one million dollars — and this is per- haps wandering a little — made a comparison with minor railroads. There are some streams that are under improvement and profit- ably navigated that do not carry, more than ten thousand tons a year, or even less. 308 As to whether a river, which was capable of floating a boat that would carry a bigger load of freight than could success- 184 Bur to n, — Di r ect Exam. — C o 1 1 tinued. fully be hauled by wagon, was navigable, — depends somewhat upon the topography of the country and the course. Generally speak- ing, I would say that the capability for carrying a load in compe- tition with other available means of carriage would render the navigation of a river profitable, whether by wagon or in any other way. You can even conceive of competition by carrying on the back, as they do on the road from Vera Cruz to Mexico. This is the best known road in the new world, and for a part of the way, it is impossible to go with teams. That would be an extreme case, — where navigation competes with carriage other than by vehicles. It is not necessary for a river to be capable of being navigated by boats carrying freight for commercial purposes the entire year in order that it shall be regarded as a navigable river. It is not necessary for a river to be navigable through its length in 309 order to be a navigable waterway; partly because detached reaches may be available for navigation and the obstacles may be removed; partly because you must take a river as an en- tirety, and in maintaining the regimen or the flow it is necessary to control the whole river, including those portions in which there are obstacles by reason of rapids, as well as those portions where the slope of the river is such as to render the navigation of the river difficult or impossible. If obstructions appear in parts of a river by means of bould- ers in the water, or rapids in the river, those facts do not destroy the navigable character of the river; particularly because capabil- ity is a test, rather than actual use, and partly for the reason I have already stated, that you must take the river as a whole; and for securing the proper flow in those sections which are navigable without improvement, you must also take into account and have control over the portions which are not navigable without treat- ment. The Columbia Eiver is a navigable river. There is a portion 310 of that river, relatively midway in its navigable part, called “The Dalles,” through which boats do not pretend to ])ass. There is another obstacle between “The Dalles” and the mouth of the Willamette, and then at Priest Eapids and a number of other places there are obstacles in the way of ra})ids. Obstacles such as the ones just mentioned do not take from a river its navigable character. As to what is the minimum amount of water depth that I know to be navigated in the United States for profitable commercial navigation, — that is a question which is somewhat difficult to an- swer, because the statistics as to most of the rivers are for low- water depth. Rivers are profitably navigated at a depth of 20 in- ches, or even less. Perhaps I had better qualify that statement, — on a draft of 20 inches or even less. Well, there is the Tar River, the portion of it in North Caro- 311 lina, that has only 20 inches. Then on the rivers in the cotton country, between the Mississi])pi and the Atlantic, there are boats which carry cotton and other commodities profitably on a draft say of sixteen inches, thougli the rivers at certain seasons have greater depth and the boats can draw more than that. Take for instance the Ocmnlgee, the Oconee, the Coosa, the Alabama. There is a river in the State of Delaware known as Smyrna River the original depth of which was 2 1/2 feet. It has now been deepened until it is considerably more than that. There is a large number of three to fonr-ft. rivers where ]:>rofital)le navigation is conducted. Of these a very large list could be given. The Ten- nessee, from Chattanooga to Knoxville, at times does not have a depth of more than eigliteen inches, and boats occasionally are used on that river on a draft of not more than eighteen or even sixteen inches. Of course, the Ocmnlgee and Oconee, at certain seasons of the year, have a greater depth than that; most of the year they have a greater depth than I have named, l)ut boats are used on them with only that draft. The projected depth of these two is three feet each. Interrogatory 32: From the study and investigation that you have had of rivers and the knowledge you have of the Desplaines River in Illinois, state whether that is a navigable stream. Counsel for Defendant. I object to that. 312 Interrogatory 33 : If the Desplaines River, for a period of three or four months in a year, exclusive of the time it is frozen over, contains a depth of water ranging from eighteen in- ches to ten feet in depth, and the river ranging in width during 186 Burton, — Direct Exam.— Continued. these times at from sixty feet to a quarter of a mile, without ref- erence for the moment to the question of slope, would you char- acterize that, or say that it is a navigable river? Counsel for Defendant. To that question I object on the ground of its being irrelevant, incompetent and immaterial, and on the ground that not sufficient facts have been stated in the hypo- thetical question upon which a proper answer can be made. A. Well, I take the question as this: A minimum depth of eighteen inches for at least three months of the year, and a width varying from sixty feet to a quarter of a mile. I would say it is navigable. Interrogatory 34: If in the Desplaines Kiver there are rapids in places, and boulders or stone on the rapids, would that fact take the river out of the list of navigable rivers! A. Not necessarily. It would depend somewhat upon what share of the river was made up of rapids and what share of channel, with a slope not too great for convenient navigation. The method of treating or improving a river where there 313 are stones or boulders in the river’s course is, well, there are (luite a number of ways; one is to take out the rocks or the obstacles. That however, frequently lets out the pool above, and Avhile it does away with the rapids at the obstruction created by the rocks, it diminishes the level of the river in a portion that is navigable. Of course, if it is a mere detached rock, the way is to pick it out, blast it, or remove it in some other way; another is by the construction of what are called ‘^wing dams” going out at right angles to the bank at the side to narrow the channel of the river. That does not necessarily overcome the rapids. Still another way and the one that is most effective, is the construction of locks and dams. I would say that the improvements of such rivers as have been improved have rendered them more valuable as navigable streams. Of course there are a great many rivers which have not l)een improved by the United States Government. If you take 314 all the streams which are styled rivers, a majority of them have not been inq)roved. Nearly all the rivers of the United States that are actually being navigated, have been improved in one or more of the methods I have suggested. I did not state I 187 sliould say liere, all the methods of improvement. Other ways of improving- are by wing dams, longitudinal dams and dredging. These are the prinei})al means employed. Of course, where it is a great alluvial stream, the ])rotection by revetment to ])i*event the washing out and where there are great floods, levees or other methods. The' matter of improvements of rivers and harbors by the Government of the United States, that is to say, the question of whether they shall be improved or not, is a question that is pri- marily submitted to the Committee of the House of Representa- tives, of which I am the Chairman. C ross-Exa m ina tion . Tnterrogatoi'y 39th: Mr. Burton, you define a navigal)le river as one which could be used for profitable commerce in competition with other means of transportation. Su])pose a river cannot be used for profitable commerce in competition with other means 315 of transportation unless improved largely throughout its length, would you consider that to be a navigable river? A. I would consider that navigable. In actual practice I should say you will hardly ever find such a stream. A river will be navigable in a certain portion of it, say 4 miles here, then there is an obstacle; then 2 miles, then there is an- other obstacle. Now, these separate stretches or reaches of the river can no doubt be navigated, and that makes it a navigable stream; but I would make the definition broad enough to include a stream which can be rendered navigable by improvement. It is hard to say whether it is a legal proposition. My experience has been so combined, so made up of study of actual physical condi- tions of the rivers, their navigability, the uses to which they are applied, with the legal proposition, it is pretty difficult to say whether I regard that as a legal prox^osition or a question of 316 fact. Under my definition all streams are not practically navi- gable streams; unless it promises returns for the money in- vested in its improvement, I should not say that river was a navi- gable one. It is true that is a x^ractical view to take of it. But if a river is all cut up with rax3ids, and where the expense of treat- ing it and cax^italizing would more than counter-balance any bene- fit derived from the use of it, I would question whether that 188 Burton, — Cross-Exam. — Continued. should be regarded as a navigable stream. You must take into ac- eount that I look upon it from the standpoint of the benefits de- rived from improvement, the expense and difficulty of improve- ment. Interrogatory 43rd: Well, suppose the Desplaines Eiver, of which Mr. Eeeves has asked you, is 18 miles long from Lockport to its mouth, and that it would take at least three locks and dams to make that river callable of navigation, actual navigation, would heights of eighteen, twenty-one and twelve feet, lifts at the locks, that river having a fall in those eighteen miles of about sixty-six feet, being an average of about four feet per mile, and the river being paralleled by the Illinois and Michigan Canal, used for pur- poses of transportation and by three trunk railways, would you say that was a navigable stream? A. What is the depth of pools that vrould be created? Counsel for Defendant. That would be somewhere between twelve and fourteen feet. 317 A. I would say that would be navigable, most certainly. I think it would be profitable to do that work for the pur- pose of navigation. There are rivers in France, I do not recall the names just now, where there are locks every half mile. You must bear in mind that on so comparatively a short stretch as that, that difficulty of handling at the beginning and the end of the rail- vray, and of the maintenance of a canal — canals can never be made equal to a natural stream unless you make them abnormally wide — would cut a very considerable figure, and navigation would be a l)rofitable means of transportation. Of course the rate on a rail- road would Ije very much higher per ton mile for such a distance than it would be on a river — both the actual rate charged and the actual ex})ense. AVhether or not this river in its natural state or in its present state, is capable of navigation for the purposes 318 of useful commerce, would depend somewhat on the slope and the length of the pools which are not impeded by rapids. It has not been stated how long those })ools are. The facts have not been sufficiently stated to me to exj)ress any opinion as to whether the river is, or is not navigable; I would say if there were three obstacles in a distance of eighteen miles, it would dei)end on the 189 length of the rapids, or extent of the obstacles at those places, hut there would he, at any rate, navigation on the detached por- tions, if the obstructions by rapids or other obstacles, are not 319 unusually long. It would be capable of navigation over the portions where the obstacles do not prevent. An ordinary rapid is not an inseparable prevention to navigation. The rule as laid down in the text books of seventy-five years ago, was that about 11/4 ft. per mile was the maximum consistent with conven- ient navigation, but since then methods have been devised to over- come rapids. Take it at the iron gates of the Danube — there the descent is considerably more than that. Just above the boundary line of Hungaria and Eoumania, Servia being on the opposite side, Hungaria taking the responsibility and taking the lead, they have a fixed post and a drum on the boat, and wire rope that hauls the boat by power in itself over the rapids. The slope of those rapids in places must be 4 ft. or more to the mile. I think I am conservative in stating that. As to this Desplaines Eiver, my impression is for the whole river, a descent of 100 ft. in 60 miles. 320 Interrogatory 53rd : Now, Mr. Burton, assuming that be- tween Jackson street and McDonough street in the City of Joliet, a distance of about 5,000 feet, nearly a mile, there is a fall of 9 ft., or about 1.8 ft. per 1,000 ft., during the low water season, and during high water season, there is a fall of about 2 ft. per 1,000 ft. Now, on 18 inches of water, which was the minimum depth given in the hypothetical question that Mr. Eeeves asked you — do you say that boats carrying commerce could navigate up and down that stretch of one mile without the improvement of it? A. I do not think so, if it is say only 18 inches deep. Interrogatory 54th: Well, suppose it was 2 feet. A. I do not think so. That however would not take away the quality of the stream. Whether the boats could be navigated up the stream as it now exists, well, it would be very difficult, if not impossible. I have come so to consider the legal question and the practical questions together, that it is pretty difficult to separate the two. 321 Interrogatory 56th: Now, below McDonough street in Joliet, and between that and Brandon’s Bridge, assume that 190 Burton, — Cross-Exam, — Continued. there is a fall for a distance of 2,000 ft., of 3.75 ft., or about 1.88 ft. per 1,000 ft., during low water, and that during high water, the fall for the same stretch of river is about 1.1 per 1,000 ft.; this be- ing a stretch of river just below the 5,000 ft. stretch that I have al- ready asked yon about, would you say that if there was from 18 inches to 2 ft. or 3 ft. of water, that it would be possible to navi- gate boats used for commerce up that stretch of river? A. It would probably be possible, but not practicable without treatment of some kind. Interrogatory 57th: Now, assuming Mr. Burton, that from Lockport to Brandon’s Bridge, a distance of about 7 miles in those 18 miles of river, there is a fall of 34 ft. of continuous descent; and assuming now that a dam which is called dam number 1 ex- isted there, and will be removed, and there will be a continuous descent of 34 ft. in a distance of 7 miles, or about 5 ft. per mile, do you think it would be possible, with the water from 18 inches to 2 ft. in depth, to navigate that stretch of the river for the pur- 322 pose of useful commerce, without any improvement? A. It would be very doubtful. It could be navigated by devices which could be employed if the stream is fairly straight without treatment of the channel. If there is a sharp bend in the stream that would be a serious obstacle, it would depend of course, upon the width of the chan- nel and the depth of the channel. It is very likely that the chan- nel would be deeper or shallower around the bend. Interrogatory 59th: Well, now, I will ask you another hypo- thetical question. There is a fall between Lockport and Brandon’s Bridge, a distance of 7 miles, of 34 ft. or about 5 ft. x^er mile. Then, there is about 5,000 ft. between Jackson street and Mc- Donough street, with a 9 foot fall in that 5,000 ft. Then from Mc- Donough street to Brandon’s Bridge, there is a fall of 3.75 ft. ]ier 2,000 ft. Then a little below that, along Treat’s Island, for a stretch of 2,000 ft., there is a fall of 5.5 ft. A little below that at a point called Smith’s Bridge, for a stretch of 3,000 ft., there is a fall of 2 ft., and a few miles below that, at Dresden Heights, 323 where this dam of the Economy ijight & Power Comxumy’s dam is in ]>rocess of construction, for a stretch of 2,000 ft., there is a fall of 3.2 ft. Now, with these falls, what do you say 191 as to the capability of that river being navigated in its present state, from the mouth to Lockport, for tlie purpose of useful com- merce I A. Well, it would be very questionable whether it would be navigated for that whole distance. If I may express an opin- ion, that would not take away the quality of the stream as a navi- gable stream, if part of the way there are pools that are readily navigable, and there is a terminal point beyond the end of the })ool that by treatment could be made navigable — it is still a navi- gable stream for the whole distance. I mean the Federal Government would have jurisdiction over it, particularly l)ecause it would be necessary to control that up])er portion to make sure that the water flowed without obstruction through the lower portion. It seems to me this is a question’ of fact, as well as one of law. That is, it would readily appear that if the jurisdiction, which has control of the navigability, did not have supervision over this season, from which the water means 324 comes to furnish the normal depth l)elow, the jurisdiction would be futile. You presented several propositions relat- ing to different portions of the streams, different conditions in this different reaches, that are widely different. On some of them I would say that it is difficult, if not impossible, for a boat to go up without in some way improving the stream, and on others not so difficult. It would not be so difficult to go down, but that also would be difficult, and in some places probably impossible, consistent with safety. The limit of slope for purposes of useful navigation would de- pend on two or three things; first, the depth of the stream; 325 second, the width; third, the course of the river, that is, whether straight or crooked. I have not the exact figures in mind, but I think on a slope as much as 8 or 10 feet, boats are drawn-up stream by those devices which I have suggested, — some point to which a rope or chain can be attached and a drum with power on the boat. Well, the Elba is one river in which the above method is tried as much as any. There the depth at low water seasons is not very great, I should say about 3 feet. I don’t think it is a fact that there are 407 miles of chain in the Elba Eiver, and that those chains are now being used where the slope is as flat as 1 foot in 3,300 feet. It is not a very difficult task to go up a 192 Burton, — Cross-Exam. — Continued. slope which is only a foot to a mile. I am very familiar with Ver- non Harcourt^s book on the ‘‘Rivers and Channels of Europe.” It is a very good book, although not always accurate. I 326 was misled by it in an address made before the Geographical Society last winter. I made an error by relying on the state- ments of this book relating to the size of the river basins of the world. I have not the exact figures in mind, but there 327 are some very steep slopes in the Rhone River. I am not posi- tive as to the slopes of those European rivers, but I am quite ])ositive that 4 foot slopes can be used for navigable purposes, for open water navigation treated perhaps by lateral dams or dikes. These however, increase the difficulty unless they are located at a place just at the point where the flow of the river is more smooth without so much descent. As to the slopes of the southern rivers, well, take part of the middle section of the Tennessee, that is 2.75 feet in the mile. The fall from Knoxville to Chattanooga is on the average about one foot to the mile, though in some places it is very materially more than that. I should think the maximum slope where there is a navigation in those rivers, would not be greater than 4 feet. Take the Allegheny — that has 2.2 feet over long distance, and in some places more and in some places less, of course 2 to 3 feet to the mile. In the upper portion of the Monon- gahela, that is, that portion that is in AVest Virginia, it is 328 about 2 feet. That is the average descent of course. There, as in the other case, there is sometimes more and sometimes less. As to knowing any river where navigation is actually carried on and where the slope is more than 4 feet to the mile, why for down stream navigation, the St. Lawrence at the rapids must be more than that. I am not positive, however, as to the figures. In some portions of the Tennessee, between Chattanooga and River- ton, it must be more than 4 feet at different stretches of water. Commerce is carried on up-stream to no great extent in the St. Lawrence. They go down through the open river with some boats, and go up through a canal. I think there are records that give the exact slopes there of those European rivers. I do not re- call them, however. I have not studied any of them. Interrogatory 72nd: Assuming that in the Lesplaines River, from Lockport to its mouth, a distance of about 18 miles, there is 193 one pool of water about 5 1/2 miles in length, and another pool about 3 miles in length, making altogether about 9 1/2 miles of pool, and that the remainder of the river between Lockport and its mouth, about 9 miles, consists of stretches, of rapids, of slopes, that I have mentioned here, do you say that that river, in its 329 present state, without improvement, is capable of being used for profitable commerce? A. It is pretty hard to answer that question, yes or no. If you say for the whole stretch of the river, I would say ‘^no.’^ If you say for those portions, I would say “yes,” and would add that the navigating of those portions gives a character to the whole. I should take it it would be impossible to run a boat from one end to the other over rapids that are so steep. Interrogatory 74th: Particularly in view of the fact that some of these rapids to which I have called your attention, extend 2 or 3 miles in length; for instance, the rapids from Jackson street to Brandon’s road is a little over 3 miles. A. The rapids are 3 miles in length? Interrogatory 75th: That is, in the first 5,000 feet, the descent is 9 feet, then comes a stretch of 2,000 feet where the descent is 3.75 feet; then comes another stretch where the descent is 330 5.5 feet for 2,000 feet. That would be over 10 feet per mile — 11 feet per mile. And then comes another stretch of 3,000 feet, where the descent is 2 feet for the 3,000 feet. A. Well, if the stream were without obstacles, was fairly straight, that would not do away with the possibility of going through it with boats. The other portions that you mention as 11 feet, I should think would not be navigable with any device now in use. The portion 6.9 feet to the mile, would be difficult, if not impos- sible. As to 8 feet to the mile, you are getting down there I think to the limit, of course there is very rarely a stream where for miles the descent is uniform. You take it where it is 8 feet to the mile, probably in a portion of it it will be at a rate that you call it; at another as much as 12, and in another probably 6. Well, suppose a stretch of a mile or 1/2 mile in the river, that is prob- ably uniform of 8 feet to the mile; to carry on useful commerce would be expensive, but if there is a part of the stream which above 194 Buvion, — Cross-Exam. — Continued. the pool could be readily navigated, that would not in my opin- 331 ion take away the navigability of the stream. I must say in this connection I had not considered the exact feature, the slope up which and down which boats go. It would be rather in- teresting to look up those figures, because the conditions are so different in different places. I should hesitate to venture an opin- ion as to whether boats could be taken up and down the Desplaines River, as it now exists, without more complete details as to the depth, width and general nature of the channel. I am of course limiting my answers to the portions which you describe, in which the descent is so sharp. As to whether the Desplaines River has ever in fact been navigated, I could not say that I had any infor* mation that is accurate that it has been. I had always understood, however, it had been used for purposes of navigation — some old narrative about a portage across there from Lake Michigan, 332 connecting with the Desplaines and going down it. I was not aware there had been as many as nine dams in that stretch of the river during the last forty-five or fifty years. That would seem to show that that was an industrial center before Chicago was. Interrogatory 83rd: Would you not say, Mr. Burton, that the fact that all those dams were constructed in the river, is persua- sive evidence that the stream was not capable of navigation for useful commerce? A. No, I would not decidedly. I have known instances in which persons, even by Acts of Congress have managed to sneak in a dam where they ought to be barred for doing so. I remember one instance in which it was done in the Tennessee River, and the next winter the people who were advo- cating it, wanted it repealed. 333 As to having any of the facts as regards the condition of the river in its natural state, I have none, except superficial ideas from reading reports, and I have never given any special at- tention to that locality, except as connected with the proposed drainage channel, and have not in mind the course of the stream between its mouth and Lockport, except as I have just casually ex- amined it on the map. 195 534 William Lokimer. Direct Examination. My name is William Lorimer. I am forty-six years of age. I reside at Chicago, Illinois. My occupation is that of manufacturer and general contractor. I am a member of Congress and reside in Washington during the sessions of Congress. I am a member of the Committee on Agriculture and Committee on Rivers and Harbors. I was elected in 1894, and was out one term of two years. The remainder of the time I have been and now am a 335 member of Congress. I was assigned to the Committee on Rivers and Harbors of the House of Representatives in De- cember, 1903, I think. This is the third Congress of two years during which I have been a member of this committee. I have during my service on this committee given study and inves- tigation to the general proposition of Rivers and Harbors, and during my service in Congress, I have given -study to the water- way between Chicago and New Orleans. That waterway would be from Lake Michigan through the Chicago River and Sanitary District Canal, and beyond that, any course that might be adopted by the State or Federal Government, either the Desplaines River or the Illinois and Michigan Canal, or a canal that might take it down to the south side of the Desplaines River by the Kankakee, and then through the Illinois River into the Mississippi, and 336 on to the Gulf. I am acquainted v/ith the Desplaines River. I have given it study for about twelve years. I have known it for thirty-eight years. Interrogatory 12th: State whether or not, Mr. Lorimer, the Desplaines River is a navigable stream. (Objected to as incompetent, irrelevant and immaterial, and as an opinion for which no foundation has been made.) A. It is a navigable stream. A navigable stream is a river that, is capable of bearing boats, upon which can be transported commerce, deep enough and wide enough, with water enough. As to what minimum depth of water in the channel of a river affording from 60 feet in width to a 337 quarter of a mile in high water, boats can be built to bear commerce over water that draw 2 feet in depth. I know that 196 Lorinier, — Cross-Examination, in my personal experience. From the study and investigation that I have had of the navigable waters of the United States, in con- nection with my official duties, I have known of navigation on the Tennessee Eiver, parts of it at times was of less than 2 feet of water. The fact that there may be for a stretch in the river, rapids or stone or rock, does not destroy the navigable character of the stream. Basing my opinion on my experience and ab- sorption on the one hand, and my study of Eivers and Harbors, in the course of my work as a member of the Committee on Eivers and Harbors of Congress, the fact that a portion of a river con- tains rapids or boulders, does not in any sense destroy 338 the navigable character of the river. If a river has suf- ficient water to carry boats a part of the year, say three or four months only, exclusive of the time that the river may be frozen over, that state of affairs does not destroy the navigable character of the river. Cross-Examination. When I stated that this was a navigable stream, I mean that it is a navigable stream because it can be navigated by boats that are capable of carrying the commerce of the country. I know that first of all, because I have been over the stream during my life time practically all the way from its mouth to the Town 339 of Wheeling, and I know that between the Illinois Eiver and Lockport, there is a minimum depth between the low standard stages of the river, certified to by the engineers that made the survey, over the rapids to the mouth of the river, of not less than 3 feet of water, and over the rapids at Treat’s Island, of not less than 2 feet of water, and that only for a distance of about 500 feet between those two rapids, there is a depth of water all the way from 4^ feet to 15 feet. Beyond Treat’s Island, up to and through Lake Joliet, there is a depth anywhere from 4 feet to 17 feet. It is all the way from say 125 feet to 1500 feet wide. That width of 1500 feet is in Lake Joliet, and between Treat’s Island and Lake Joliet, it is more than 1500 feet wide in some places. The nearest point, according to my recollection, is round Treat’s Island, what might be called right there according to the position you are viewing the river from, either by the north side of the river or the west side, there is a big considerable turn right there. I haven’t any doubt that a boat we are all familiar with, the Illinois Fish Boat, could be so equipped with en- 340 gines, as to navigate all the way from St. Louis to Lake Joliet. I got the information as to the depth of water over the rapids, from the report of the engineers, the one making the survey from Lockport to St. Louis, that was published in 1905. That is the only survey for the 14 foot waterway. I know that boats without any extensive expenditure for ma- chinery, can navigate the river from the rapids at Joliet to the mouth of the Desplaines Eiver. Then I am quite sure that a boat of the character that I just mentioned, the Illinois Fish Boat, can be equipped with machinery so that it can go up the river. I did not ever hear of a boat of that character going up or down the stream. I did not ever know that part of the river, of any boats being used for commercial purposes, being navigated up 341 or down the river ; I have known of them being navigated for commercial purposes above Joliet. As to the depth of water not being the only matter to be considered in the determining whether boats can be navigated, of course if a stream was too narrow, that would control. The slope could be so much at Dres- den Heights and at Treat’s Island, and is not so great that boats could not be navigated. I think about 44 feet is the slope from Dresden Heights down to the Illinois Eiver. As to suppos- ing the slope at Dresden Heights to be 1.6 feet per 1,000 feet, or 8 feet to the mile, I have gone over the ground there in the low water stages of the Desplaines Eiver, and there is no doubt' in my mind that you can take boats up the Desplaines from Dres- den Heights. Suppose the slope to be 8 feet to the mile, as shown by this report of the Engineers of the United States Government, boats for the purpose of profitable navigation could be run 342 over those rapi-ds by cordelling, without any doubt. That is, they could be so equipped 'that they could be built up conven- iently and rapidly. I have never heard of it being done, but I know enough about machinery to know that they could be equipped for that purpose and operate profitably. I have never run a boat line, but from what I know of rail rates and water rates, I have no doubt that goods could be transported from St. Louis to 198 Lo rimer ^ — Cross-Exam. — Continued. Joliet by water, and cordelling over those rapids that we are dis- cussing, for less than you can take it there by rail, and there- fore it is profitable. As to how you would get over the dam at Marseilles, the Illinois Eiver is susceptible of improvement, 343 so you could build a lock there and carry it out through the lock. The Illinois Eiver is under improvement. If it were improved at such points as needed improvement, of which Mar- seilles is one, boats might be run up the river. For easy naviga- tion, there should be improvement all the way up the Illinois and the Desplaines Elvers to Joliet. Boats could not profitably, for a commercial purpose, in the condition of things as they now ex- ist, without any improvement, be run from St. Louis to Joliet. There would have to be some improvement in the Illinois 344 Eiver. Well, now you put the question whether or not it would be profitable, and I can only answer that, based again on the statement I made a little while ago, on the dif- ference between the railroad and the water rates. If the Illinois Elver were improved, so as to make it possible for boats drawing 24 inches of water, to pass through the river into the Desplaines Elver, I have no doubt about it. There is not any doubt but what a boat drawing 24 inches of water, could go from the mouth of the Desplaines Eiver up to Joliet now; well, to the foot of the rapids at Joliet, that is, to Brandon’s Bridge, that neighborhood. As to a boat drawing 24 inches of water going over the rapids at the mouth of the river at Treat’s Island, the proof of that is the depth of the water, 3 feet. Now, if it is ad- Illb mitted that a boat can be cordelled over the rapids, and that I believe, then for the balance of the way there is plenty of water. There is 8 to 15 feet in the first stretch, and 4J feet to 17 feet in the second stretch, to the head of Lake Joliet, a distance of 6 miles. In other words, there is in those two reaches, a depth of from 44 feet to 17 feet, over a stretch of about 9 miles of water. Now, there is depth enough there over those rapids, for a boat drawing 24 inches, to pass over. I know the length of the rapids between the mouth of the river and Joliet; I know from memory and not exactly, pretty close. I should say altogether — there is altogether from Joliet to Dres- don Heights, or the mouth of the river, I think there is some- 399 where in the neighborhood of 4 or 5 miles. I do not pretend to be accurate as to the exact distance, but somewhere in that neigli- borhood; that is, from the foot of one rapids to tlie mouth of the Desplaines Kiver. I remember what the conditions of the river are with reference to the rapids, from Lake Joliet to Lock- 346 port. Well, boats could go up there, and I believe boats could be so equipped that they could be taken up there. I do not know of any boats now on any of the rivers that are so equipped as to go up that stream, but there isn’t any doubt in my mind aboui being able to go up to Dam No. 1. They could not get through that dam. To make it a first class navigable stream, there must be locks and dams, and my opinion is, the locks and dams can be constructed without any difficulty at all, and when I that, I mean to say I know it can be done. As to the state of the river being now such that useful commerce can be carried on, commerce can be carried on from the foot of Treat’s Island to Joliet, no one will dispute that. You could build a boat that could go from Treat’s Island up to the head of Lake Joliet, that could 348 carry 1,000 tons of freight. I do not say whether the com- merce is there, and do not know whether the commerce is there. I know that it is capable of handling the commerce. There is commerce between Treat’s Island and Lake Joliet, but the com- merce is not carried on on the river. As to whether, if a line of boats were constructed between these two points, it will be profit- able and useful to the community, that would depend altogether what sort of commerce it is, and what it is to be used for. I can tell you a little experience I have had myself. I was at one time doing some work on the Desplaines River, and I had a cofferdam I was having a good deal of trouble with. I got a load of crushed rock, and brought it down the Illinois and Michigan Canal, to a point where the canal crosses the Desplaines River, cordelling it up about a mile. The reason Ave did that was be- cause we could handle the rock cheaper that way than any method we could devise, so that for a distance of 6 miles, under the 348 same conditions, it would be profitable. It was profitable to us, and that is why we did it. From my own personal knowl- edge of the river, I would say that the river was capable of being used for commercial purposes. I know that you can use the Des- 200 Lor inter, — Cross-Exam. — Continued. plaines Eiver from the Joliet & Eastern R. R., for a boat drawing 9 feet of water down to the City of Joliet, and for the purposes of transporting stone from anywhere along up there in the neighborhood of Lockport, down through the Drainage Canal, into the Desplaines River, to unload at Joliet. There is no doubt of its being profitable to transport stone down that way. The work I was doing when I used that stone, was lowering the bottom of the Desplaines River for the Sanitary District. That from the fact that there are several pools in the river, where a boat could be floated, and could be made to carry, for a short distance, produce or stone, I say that the river is capable now of being navigated for the purposes of commerce. It is not necessary that a river shall be navigable, in fact in all its length, to be a navigable stream. For instance, the Potomac River is navigable up to and a little beyond the City of Washington, 349 and there is a considerable fall about ten miles out from here, but the Potomac River is a navigable river beyond that point. And the Desj^laines River, connecting with the Illinois and Mich- igan Canal, which is a navigable stream of the United States, and capable of navigation and transporting commerce profitably, and into the Illinois, — is a stretch of navigable waterway of the United States that commerce is actually transported over; so that it makes part of tire Desplaines River actually navigable and properly so, and I consider it a navigable stream for that reason, although in parts it could not be considered navigable. The fact that a part of the Desplaines River is used by the Illinois and Michigan Canal, and is navigable, does not alone make the whole river navigable. The river is actually navigable, and nobody will controvert this statement. Below the City of Joliet and Treat’s Island, and below the rapids at Treat’s Island, and below the rapids at Dresden Heights, it is actually navigable at the shoalest point of 4 feet. Then it is actually navigable from Dam No. 1 to the Drainage Canal below Lockport; and that is a navigable waterway declared by our Legislature when a certain quantity ])assed tiirough it, because the largest ship navigating the 350 Great Lakes, can actually navigate it. The minimum depth of course runs down to 3 feet below the rapids. To the foot of the rapids below Treat’s Island, there is actually 4 feet. I can 201 only say that the report made on the 14 foot waterway, made from Lockport to St. Louis, show that there is no point between the mouth of the Desplaines Eiver and the foot of the rapids at Joliet, where the water in the low standard stages, is not 2 feet deep, and that is only for a distance of 500 feet. Over the rapids at Dresden Heights, my recollection is that 3 feet is the lowest. As to the date when the river was gauged, well, it was-gauged for a considerable length of time, and the gauge reports are con- 351 tained in that report that you have before you. The report published in 1905, was before the Sanitary District water was turned into the Desplaines Eiver. As to the condition before it was turned in, I have never made investigation, and do not know a thing about it. Before this report was made, I had no infor- mation as to the depth of any part of it. The reach above Treat’s Island to the foot of Lake Joliet could have been navigated, I am quite sure, prior to the time when the Sanitary District water was turned in. After taking boats up from the mouth of the river to the City of Joliet, I do not know what the depth was there in the low stages of water, and for that reason, cannot ex- press an opinion. That there was a stretch of the river, above Joliet, where large boats 9^ feet in depth could navigate, was 352 because of the improvement in the river there by the Sanitary District. I do not know how deep the water was before the tail- race was constructed, or the quantity. I think I had bettter say that from the time the canal was opened, there has been passing all the way from 225,000 to 420,000 cubic feet per second when the bear trap was down. Now, part of it, or may be all of it, flowed over this part of the river that we are referring to. I do not know how much, and I do not think anybody else does. I do not know how deep it was for that reason. It is possible to take the water coming from the Sanitary District Channel, the main channel, and discharge it into the Illinois Eiver, below the proposed dam of the Economy Light & Power Company at Dres- den Heights, without discharging the water into the Desplaines Eiver. The water in the Sanitary District channel, coming from Lake Michigan, is taken through the channel and discharged into the Desplaines Eiver, by authority of the court, of the Legislature 202 Lo rimer ^ — Cross-Exa m. — Continued. of Illinois, and by permit from the Secretary of War, to di- 353 vert it from Lake Michigan. Congress might stop this per- mit at any time. Interrogatory 71st: The stretch of water in Lake Joliet, that is between Brandon’s Bridge and the head of Treat’s Island, would not be affected in any way by the construction of the pro- posed dam of the Economy Light & Power Company? (Objected to as not important and not relevant; overruled.) A. To be truthful about it, I could not say. My opinion is from what I have heard about it, that they would construct above the level of Lake Joliet. I do not know about it as a matter of fact. The proposed dam would not decrease the depth of water in Lake Joliet. It might make Lake Joliet wider, I do not know 354 about that. I do not know the exact Hepth of water prior to the time when the Sanitary District Canal began its dis- charge in the Desplaines river. I never kneAV until this report was made. From observation, I have known from time to time what, — in the low stages of water now, I know that there is water enough at certain periods of the year, coming from the natural watershed of the Desplaines Valley, to make a considerable flow of water over those rapids. Interrogatory 76th: In your judgment, Mr. Lorimer, would the construction of the proposed dam at Dresden Heights, inter- fere in any way, with the proposed deep waterway, if proper provision for locks were made at that point? (Objected to as not being cross-examination, and not rele- vant to the matters at issue.) A. Locks could be built there to pass boats through. CouxsEL FOR Complainant. I will ask Mr. Lorimer to state any fact in connection with this matter about which you have not been specifically asked. A. As a member of the Eivers and Harbors Committee, and on account of the work that I have been doing, and the 355 searches that I have made for information, I have come to the opinion with reference to waterways, and that all mem- 203 bers of the committee that I have known, liave tlionght a water- way that is navigable in part is navigable in fact, and even though it may be interrupted by rapids or perpendicular falls, or sand bars, as long as it may be made navigable, it is a navigable water- way of the United States, and I know that a part of the Des- plaines Eiver, from the end of the Sanitary District Canal, where they have a lock that they can lock boats through down into it now, is navigable for boats of 8 feet of draft, and it is navigable for boats that can carry a considerable commerce through the Des- plaines River, into the Illinois and Michigan Canal, and connect with the Illinois River at La Salle; and I know that it can be so improved as to connect with the Illinois River, and made nav- igable for boats of any length — six hundred feet long, drawing 24 feet of water, capable of carrying from 6,000 to 12,000 tons of a cargo; and it is because of that knowledge and information of the surroundings, and its capabilities, that I make the statement that it is a navigable waterway of the United States, and because our courts have so decided — have made the Illinois and Michigan Canal a navigable waterway of the United States, and a part of it is the Desplaines River. It is the connecting point of nav- 356 igable waterways of the United States. I never had any doubt, for the last ten years, of the navigability of the Des- plaines River. I think, as far as I know, and that is up to AYheeling, I think there is watershed enough there to take care of the seepage, and make the Desplaines River navigable up to Wheeling. AYe call Wheeling 25 miles northwest of Chicago — from Milwaukee ave- nue, Chicago. It is in Cook County. It is above Chicago, on the Desplaines River. Deposittox of C. T. Heydeckee. (Filed March 23, 1908.) 361 Notice of taking of depositions to Isham, Lincoln & Beale, that on Monday, the 24th day of February, at one o^clock before Roy 0. Sampson, No. 206 AYashington street, Waukegan, Lake County, Illinois, to begin at said time and continue from day to day until completed. 204 Said complainant deems tlie testimony of said witness nec- 362 essary in said cause. Witness: C. T. Heydecker. Signed by counsel for complainant. Acknowledgment of receipt of no- tice by Isbam, Lincoln & Beale. Stipulation to continue taking of depositions to Marcli 2, 363 1908. Commissioners’ introduction. That said C. T. Hey- decker, being first duly sworn, testified as follows : 363 Cheistian T. Heydeckee. Direct Examination. 364 I live in Waukegan, Lake County. Have lived in the county nearly sixty-two years, ever since I was born. Will be sixty- 365 two in September next. Was born in Mill Creek, now Wads- worth, Newport, Lake County, Illinois, a scant mile from the Hesplaines Kiver. I lived there until I was twenty-one. 366 The river flows from the north through the town. I became familiar during those early years with the physical condition of the river from the state line to the south line of Lake County, and also with the current reputation as to the history of its use. In the winter time I would skate down it; in the spring and sum- mer we would find good duck shooting and fishing in it. As much as half a dozen winters I made trips on the river, between the ages of twelve and twenty-one, and about the same number in tlie spring and in the summer and in the autumn. From the state line to the south county line is twenty-four miles. Lake County 367 is the northeastern county of the state. It joins Cook County on the south. The river flows through Cook County below. Beginning at the state line the river is in a bed with a consider- able bank on either side, running about six miles, then it strikes a place where it spreads out more into the prairie again, but there is a well defined channel with a bed, but not such a deep bed, with blutfs on the sides of it, for about six miles. In the winter, in the spring or in high water time it would overflow out of its course, over its banks; then it would go down for about five or six miles again; well, two or three miles in there that would have a tendency to overflow; then it strikes what is known as the Gurnee bridge, or what is called the old 0 ’Plain bridge; it used to be called the 0 ’Plain instead of the Hesplaines. It is also spelled Au Plain. Tlie name 0 ’Plain was in more cur- 368 rent use among the neighbors. There was a little cabin in those days that went by the name of the O’Plainhouse here in Lake County at what is now Gurnee. It is the same river that we now call the Desplaines. Then it runs in a deeper channel from there down to the county line. I think about a mile or a mile and a half this side of the county line, and swerves out again just above what was known in the early days as the Vincent mill, now known as the Struck- mann mill. In some places, as I say, it would be down in a deep gorge and in other places it would not be so deep, and the east bank of it nearly all the way through was heavily timbered with oak, walnut and some hickory and softer woods. It has been cut otf now. In the north part the timber was cut into cord wood, much of it. Some of it was taken to the mills; in the south 369 part it was taken to the Struckmann mill. The logs ran down in strings of logs about five or six miles. There was no oc- casion to raft them because the earliest I remember it, the Struck- mann mill was in there with a dam. You couldn’t have put the logs over it only by rolling them. There was a saw mill there and they floated in there and I have seen logs in the dam there above the mill, in the mill pond. There would be places where those banks would be eight or ten feet high. Then you go down to another place there would be deep holes, and then there would be a shallow place, but in sum- mer time the banks of the river would be up eight to ten feet above the water in some places and in some places they would be 370 down so that you could ford through. During the spring months, March, April and May, I think the water ran otf along in May some time ; it would go down in June. The bed of the river would be full and overflowing on the flats. It would be six to eight or ten feet of water; the bank would be full and overflowing the blutf in many places. In the months of September, October and November the bed of the river would be fairly well filled during that time. There wouldn’t be so much overflow except during the equinoctial storms ; that would be about the middle of September. I should 206 Heydechery — Direct Exam. — Continued. think the average in the spring months, not counting the deep holes, would he from two and a half to three feet, maybe more, and at times there would be eight and ten feet when the freshet would come down. In the three fall months it would probably be a little less than that, from two to two and a half, possibly three feet. In the three summer months, June, July and August, that 371 would go down more and probably be less than at any other time. There might be times when it would only be half a foot. There would be places where the gravel and sand was in where you could get across without any water at all. It would be narrowed down to where you could jump across in some of the places. That was in the shallow places that they used to call the fording places. I heard from the old settlers the current rep- utation as to the early years of the river previous to the time when I first began to know it. I know in those days it was claimed by some of the old settlers that they had come up the river when they came into the county to settle, one in particular, the parents of two or my brothers-in-law. I have heard him tell a number of times how he came up the river in his little boat or canoe, 372 whatever they called it. I think they called them canoes, and he came and brought his belongings and his provisions up there and then went down the river trapping clear down through into the Illinois Eiver. I have a whole set of the Session Laws from 1833 down, barring a couple of sessions, that it all. (Witness produces Session Laws of 1839 entitled ‘^Laws of the State of Illinois passed by the Eleventh General Assembly at their session, begun and held at Vandalia on the 3rd of December, 1838. Published in pursuance of law. Vandalia. William Wal- ters, public printer, 1839.’^) On page 208 appears an Act entitled ‘Lin Act declaring the Desplaines Eiver a navigable stream.” Section 1 of the Act is offered in evidence. Q. Eeferring to this Act and to the phrase referring to the river “to its utmost limit within this State,” can you tell 373 where that point is? A. I can. I have been there a good many times, on the state line, between the States of Illinois 207 and Wisconsin. At the state line it was nearly all timber on both sides. The bank is high. Just immediately south of that point, on the west bank it must be twenty feet high. The gorge is prob- ably 100 feet to 75 feet wide there. I have known this section of the Desplaines River a good many years. When I was connected with the Secretary of State’s 374 office I ran across the original survey of the state line and I took a copy of it, so far as it directly affected Lake County in fixing the state line. I made that while in the office of the Sec- retary of State upward of twenty years ago. It is stipulated that the original record of the Commissioners fixing the northern boundary line of the State of Illinois or so much of it as may be needed to fix the northern boundary 375 at the point where the Desplaines crosses the same, or a copy thereof, certified by the official custodian thereof, may be of- fered in evidence at the trial without further proof. At the request of counsel for the complainant the witness pro- duces a book, the title page of which reads as follows : 376 Illinois in 1837 ; A Sketch Descriptive of the Situation, Boundaries, Face of the Country, Prominent Districts, Prairies, Rivers, Minerals, Animals, Agricultural Productions, Public Lands, Plans of Internal Improvement, Manufactures, &c. Of The State of Illinois: Also Suggestions to Emigrants, Sketches of the Counties, Cities and Principal Towns In the State: Together with A Letter on the Cultivation of the Prairies, By the Hon. H. L. Ellsworth. Philadelphia : Published by S. Augustus Mitchell, And by Grigg & Elliott, No. 9, N. Fourth Street. 1837. 208 Heydecker, — Direct Exam. — Continued. 377 On the reverse side of the title page is the certificate of copyright and the imprint of the printer, reading as follows : 378 ‘‘Entered according to the Act of Congress, in the year 1837, by S. Augustus Mitchell, in the office of the District Court for the Eastern District of Pennsylvania. Stereotyped by J. Fagan, ‘Philadelphia.’’ On the outer cover of pasteboard appears the legend: 379 “Illinois in 1837: With a map.” I own this book and have owned it twenty or twenty-five years. Counsel for complainant offer in evidence pages as follows: CouxsEL FOK Complainant. I read from the preface, the last two paragraphs on page YII. “The bulk of the information hereafter detailed is quite recent, being derived in part from the lately published and valuable Gazetteer of Illinois, and the Emigrant’s Guide by the Pev. J. M. Peck; also, from Flint’s Geography and His- tory of the Western States, Beck’s Gazetteer of Illinois and Missouri, Schoolcraft’s Travels, and the works of Darby, Hall, Long, &c. The work contains, likewise, extracts from different correspondents, and from various gazettes printed in the State, some of them only a few weeks before its pub- lication; particularly the Peoria Eegister and North-Western Gazetteer, the attention bestowed by the editor of which 380 in distributing recent geographical and local information cal- culated to be useful to emigrants, renders it undoubtedly the most interesting print of the kind in the state. The accompanying Map of Illinois is, for its scale, prob- ably the most complete yet published; it contains, it is be- lieved, all the United States surveys available at this time; the whole of the counties, seventy in number, organized in the state; and it will be found, on examination, to corres- pond with the descriptive part of the book — a desideratum not always found in publications of this kind.” Now, on page 28, under the heading “Eivers,” I will read the first paragraph: “It is only necessary to look on the map of this great state, to see what astonishing advantages for inland naviga- tion nature has given it. On its northern borders it has for some distance the waters of Lake Michigan and the various streams that empty into it; and by this vast body of waters a communication is opened with the northern parts of Indi- ana and Ohio, with New York and Canada. On the north- west frontier it has Eock Eiver, a long beautiful and boat- able tributary of the Mississippi. On the whole western 209 front it is washed by the Mississippi, and on its soutliern by the Ohio. On the east it is hounded by the Wabash. Through its center winds in one direction the Illinois, con- necting the Mississippi with Lake Michigan by the Des- lolaines and by the Chicago Rivers; and in another direction the beautiful Ka ska ski a flows through the state. Besides these there are great numbers of boatable streams pene- trating the state in every direction. Such is the intersection 381 of Illinois by these waters, that no settlement in it is far from a point of boatable communication, whether with Lake Mich- igan, the Mississippi, the Ohio or the Illinois.” Now, on page 35, beginning with ‘^The principal tributaries of the Illinois River are the Kankakee, Desplaines, Fox,” etc., I will read as follows: ^^The principal tributaries of the Illinois River are the Kan- kakee, Desplaines, Fox, Spoon and Sangamon Rivers. These are all considerable streams, and are, after the Illinois, Kas- kaskia and Rock River, the most important in the state. The Kankakee, or Tbeakiki, is the eastern head branch of the Illinois. It rises in the northeast part of the State of Indiana, two or three miles from the south bend of St. Joseph’s river, from whence running in a westerly and northwesterly direction through the northeastern part of Illinois, it unites with the Desplaines and forms the Illinois, forty miles above the mouth of Fox river. The Kankakee has a course of about 150 miles, and is upwards of 200 yards wide at its mouth. The prairie county through which it passes is generally of good soil. This river was discovered at an early period by the French, and was one of the principal routes used by them in passing to the Mississippi. Navigation for small craft can be effected, in high stages of the water, from the St. Joseph’s river into the Kanlcakee. The latter, for the first fifty miles ,of its course, fiows through an extensive swami^.” And the first paragraph on the top of Page 36. ^^The Desplaines river is the northern head branch of the Illinois. It rises in Wisconsin territory, a few miles west of 382 the town of Racine, on Lake Michigan, and flowing through the north part of the state, it joins the Kankakee at the boundary line between LaSalle and Will Counties, where they form the Illinois river. The Desplaines, in its course of 150 miles, runs generally over a bed of limestone. The country along its borders is populating rapidly, notwithstanding the apparent deficiency of timber. About forty-two miles above the mouth of this stream is a swamp connecting it with the Chicago river, through which boats of some burden have often been navigated into Lake Michigan. This route was used by 210 Heyd ecJc e r, — D irect Exam . — C on tinned. traders as a medimii of communication between the great lakes and tiie ^lississippi, from the first discovery of the coun- try by Europeans; — the circumstance first suggested the idea of an artificial connection by means of a canal at this point. In the bed of the Desplaines, about forty rods above its junc- tion with the Kankakee there is a fossil tree, of a very consid- erable size. It is a species of phytolites, and is embedded in a horizontal position in a stratum of newer floetz sandstone, of a gray colour and close grained. There are fifty-one feet six inches of the trunk visible. It is eighteen inches in diam- eter.” Counsel for Complainant. The above book contains a map of Illinois, with the certificate at the top, ^‘Mitchell’s Map of Illinois, Exhibiting its Internal Improvements, Counties, Towns, Roads, &c. Philadelphia: Published by S. A. Mitchell, 1838”. It represents the Desplaines River, Mnd Lake; just below Mud Lake the town of Desplaines; below that the town of Keepotaw, below that the town of Lockport, below that the town of Joliet, below that, just 383 opposite the month of the Kankakee, the town of Dresden, and in the point of land made by the confluence of the Des- plaines and the Kankakee, the town of Kankakee. I am reading this in evidence, and with the verification of counsel for the de- fendant, who approves of the reading as correct. Counsel for Defendant. That is correct. Q. Mr. Heydecker, yon produce another volume, the title page of which is as follows : 211 384 The Encyclopedia of GEOGRAPHY - Comprising a Complete Description of the Earth Physical, Statistical, Civil and Political ; Exhibiting its Relation .to the Heavenly Bodies, Its Physical Structure, The Natural History of Each Country, And the Industry, Commerce, Political Institutions, And Civil and Social State of All Nations. By Hugh Murray, E. R. S. E. Assisted in Astronomy, &c. by Prof. Wallace :Botany, &c. by Professor Geology, &c. By Prof. Jameson, :Hooker. :Zoology, &c. by AY. Swainson, :Esq. Illustrated by Eighty-two Maps. And about Eleven Hundred other Engravings on AYood, Representing the Most Remarkable Objects of Nature and Art In every region of the Globe Together with a New Map of the United States. Revised with Additions By Thomas G. Bradford. In Three AMlumes. Vol. III. Philadelphia, Blanchard and Lea 1853. 385 On the reverse side of the title page is the certificate of copyright and the imprint of the printer reading as follows : 386 ‘^Entered according to the Act of Congress in the year eigh- teen hundred and thirty- six by Carey, Lea and Blanchard, in the Clerk’s office of the District Court for the Eastern District of Pennsylvania. Stereotyped by J. Fagan. Printed by T. K. and P. G. Collins. 212 Heydecher, — Direct Exam. — Continued. 387 Counsel for Complainant. And on Page V of Volume 1 of said Encyclopedia, is the advertisement of the American Edi- tion, which reads as follows : 388 Advertisement tO' the American Edition. ^‘The object and plan of the Encyclopedia of Geography have been very fully set forth in the Preface of the English Edition, and the names of the editor and his collaborators are sufficient vouchers for its value. It is due, however, to the American reader, to inform him in what respects these vol- umes differ from the original. The whole of the English work is here given, with the single exception, that the description of Great Britain, which occupied more than one-third of the Book devoted to Europe, and considerably more than the space given to the whole of America, has been somewhat abridged; but, it is believed, without the omission of anything of im- portance. The text has been carefully revised and corrected throughout, and in most cases more recent, statistical details have been substituted for those of the original. The additions to the first volumes are not considerable in amount, but are generally such as have been required by changes in our knowl- edge or in the conditions of things. The Book relating to America has been enlarged as far as the limits of the work would allow, principally by the addition of local details; the condition of the new American states is too unsettled to ren- der it worth while to fill much space with accounts of their political relations, which might be entirelv changed before these pages met the eye of the reader. The chapter which treats of the United States has been written auew, the original being extremely imperfect and incorrect, as all European 389 treatises on the subject are. Our growth is so rapid, the in- crease of our population, wealth, commerce, manufactures and other industrial resources so amazing, the creation of new towns, cities, nay, states, is continually making such a change in the face of things, public works are conceived, planned and executed on so great a scale and with such promptitude, that it is not at all surprising that a distant writer should be en- tirely baffled in his attempts to describe the country as it is. The Zoological section alone has been retained, but it has been much enlarged, chiefly from a later work of Mr. Swainson’s and some general remarks upon the shells of the United States have been added. For the account of the Geology of our coun- try, the reader is indebted to Prof. Eogers, of the University of Pennsylvania. The Botanical section has also been pre- pared by a gentleman of high reputation in the scientific world. The Editor is painfully sensible of the imperfections of the ''other parts of this Chapter, but- lie trusts that the difficulties of the subject will obtain for him the indulgence of the reader. Philadelphia, October 1st, 183G.” 390 Counsel fok Complainant. Similarly as this is the jiropert}’ of the witness, and is a rare book which we ought not to ask* the witness to part with, I shall offer and read in evidence begin- ning with the first paragraph under the heading, "3. State of Illinois’', on page 562, and continuing to the end of the same para- graph on page 563. Counsel for Defendant. I shall object to it on the ground that it i§ incompetent, irrelevant and immaterial. (Killing on said objection by trial court. Overruled.) (Said ruling appears on Transcript page 2188.) Counsel for Complainant: I will read as follows: "The rich and highly favoured tract of country extends from 37 degrees to 42 degrees 30 minutes N. lat., and from 87 degrees to 91 degrees 30 minutes W. Ion. Its extreme length is 380 miles; its breadth in the North is about 140 miles, but it extends to 220 miles in the center, whence it contracts toward the South to a narrow point. The land area is 55,000 .square miles. Illinois has Wisconsin Territory on the North, Lake Michigan, Indiana and Kentucky on the East and Missouri and Wisconsin on the west; it has a lake coast of about 60 miles; the Mississippi forms the western boundary through a distance of 550 miles; the Ohio is its southern boundary through 140 miles, and on the east it has the Wabash for 150 miles. The interior is penetrated by noble rivers affording ex- tensive advantages for inland navigation. The little Vermil- lion, Embarras and little Wabash are the principal tributaries of the Wabash from Illinois. The Illinois, the principal river of the State, is formed in the northeastern part of the junc- tion of the Kankakee and the Desplaines, and flows, by a southerly course of 300 miles, to the Mississippi. For the dis- 391 tance of nearly 50 miles in the upper part of its course, there are obstructions to its navigation in a low stage of water, and the rapids above the mouth of the Vermillion River can be passed only in times of flood. Below this steamboats of mod- erate burthen find no impediment through a distance of 260 miles. 'The current through the distance last mentioned is exceedingly gentle, often quite imperceptible ; indeed this part of the river may with much propriety be denominated an ex- tended pool of stagnant water.’ (Long’s Expedition to the St. Peter’s river.) The Illinois has been well described as a nat- ural canal, flowing through natural meadows. In high floods 214 Hey decker, — C ross-E xamination . ^^the Illinois overflows its banks, and the Mississippi, in a high stage of water, backs np the river to a distance of seventy miles from its month. In some places it expands to such a Avidth as to receive the name of Lake; such an expansion is Lake Peoria, about twenty miles in length. The Kankakee arises in Indiana near the St. Joseph’s, and boats pass in the wet season from the channel of one rKer to that of the other. The Desplaines rises in MTsconsin, and runs for some distance jDarallel to the shore of the Lake Michigan, and not more than ten miles from the lake, with which there is a natural navigable communication, through which loaded boats often pass during the spring floods. The Fox Kiver is a large stream which rises in MTsconsin, but there are rapids a few miles from its mouth. The Vermillion is a fine mill stream ; the Spoon Eiver and the Sangamon are navigable streams. The Eock Eiver is a large tributary of the Mississippi, rising in MTsconsin; it is naA^- igable for some distance, but in low water the na\dgation is impeded by seA^eral rapids not far from its mouth. The Kas- 392 kaskia rises near the centre of the State and reaches the Mis- sissippi in a southwesterly course of about 400 miles ; it passes through a fine country and is naAugable for some distance.” TI eyd eck e i • C ross-E xa min at ion. The only dam on the Desplaines EiA^er in Lake County is the one I spoke of at the Vincent or Struckmann mill. That was tlieiv at my earliest recollection. It stretched clear across the channel and caused the water to floAV back, but in high water the water would floAV back for half a mile east of it and around the dam and mill pond. The width of the water from water’s edge to water’s edge 393 at the State line would be probably 75 to 100 feet. Further down it got up to 150 feet. At high water times it would be half a mile wide, and at dryer times, at midsummer, it would narrow down from that. The average depth during the winter months, judging of the stream that we used to skate on, was from two and a half to three feet. It would be iced oA^er that much. There are not any rapids or riffles in the riA^er through Lake County. I think in some of the places they say the current is as slow as three miles an hour. Some of it was more rapid than that. There was nothing that you would call rapids of any kind There were fording places where in the summer there would be aboA^e it a great big hole where the gravel and sand was washed out, and a little above would be a bend in the river, and we used to call them in the summer time a swimming hole. There 394 would be almost no water running. During those seasons there would be times when you couldn’t float anything on it at places. That would not be so the greater part of the summer months. It would be maybe a couple of weeks in August, or maybe a part of August when the dry time would come. Over those shallow fording places there would be times when there would be from 6 inches to 2 inches of water, and sometimes I have seen some of the fording places diy. I have seen the logs floated down to this mill. I have seen them in the dam above the mill. They would probably come from anywheres in the Libertyville woods or the Deerfield woods or the Vernon woods, probably five or six miles above the dam. The people who 395 did have them sawed them into posts and fence boards down there. I have seen them in the mill pond and in the river. I never saw logs hauled there to the mill pond by teams. I wouldn’t be there that season when they would be hauling logs, but there probably was. I couldn’t say whether there were 500 feet or 5,000 feet of logs floated down there. I think there was more than 500 all right. Lemuel Short told me he came up the river in a canoe, and the woman we used to call old mother Miller, the wife of Jacob Miller, who died in California. I knew them personally. Mrs. Miller would tell of her experience coming from Virginia and being in Fort Dearborn during the Black Hawk War. They came out in 1834. I knew Mr. Short personally. Two of my sisters married two of his boys. They told us about coming 396 up the river from Chicago in canoes. Short came up from Grundy County. He died down near Coal City. He came in 1835. Another uncle, Emory, came here from ’35 to ’37. Mrs. Miller came up here in 1834. I heard them tell it several different times and it would be told in different language every time. I have heard Short tell about his coming up, that he started from down in Grundy County where he had a large amount of land near Coal City. He bought that and afterwards married down there. He came up before the land was surveyed in Lake County, — that would be in 1839 — and located some land up there, took it from 216 Heydeclxer, — Re-direct Examination. the Government, and that when he came np he brought up all of his belongings, his clothing, some provisions, his guns and dogs and tent with him up the river. He called it ''coming from down the river down in Grundy County.'’ I don’t remember of his naming any place it was. They had a home — farm, down there and he had up here about 400 acres of land that they located 397 on. I don’t know anything about there being seven or eight dams in the Hesplaines Eiver at that time; I was never down there at that time. I did not hear him tell of coming over any dams. There wasn’t any dams there when he came up, that is, I never heard him tell of coming over any. I have heard of trappers tell of coming through the dams. I have heard him say it was difficult to go up through part of it on account of rocks. I don’t remember hearing him say how he got around any dams. He didn’t say that he carried the boat most of the way, because if he did he wouldn’t say that he came up in the boat. He died about ten years ago in Coal City Mrs. Miller died since I went away from the farm — she must be dead twenty or twenty-five years. They came here, as she tells it, they came out from Chicago, up the Hesplaines Eiver, and he built the first mill on Mill Creek. The creek ran out jusfm little below Wadsworth. The Millers built the first mill in this territory, before the Vincent mill, some- times called the Kennicut mill. Mrs. Miller said she came up from some point west of Chicago; of course I was not old 398 enough to go up there very early myself; the neighbors used to tell about the folks coming up the river who came in here and settled on a farm adjoining father ; father took our farm from the Government and they settled, they came up in 1836 or ’37. That was James Emory. Re-direct Examination. I understood from* their description that these two families. Short and Miller, came into the country for their permanent es- tablishment here by boat on the Hesplaines Eiver, and they went back' down the river trapping several seasons after that, came down in the fall and went back in the spring. Emory didn’t bring his household property that way the first time. He stayed one winter and then he went hack to New York State wliere 399 he came from and got his wife and they came through that time in a prairie schooner. lie-cross Exa m in at ion. I don’t think they had any wagons at the time that Mr. Short came up the river. I don’t think he had any wagon. He got property down there after he bought up here. He got a lot of canal lands. All I can tell you is what the folks tell. Whether he could have done it or did do it I don’t know. I wouldn’t name 400 any place. I have no recollection of his ever saying Morris or Joliet or any place, but from down there he came up the river. It may be that he came up from some point in Cook County. It may be that he got on at Wadsworth and went six miles further up the river. I don’t know. It is my impression, left on my mind as an old story of the neighborhood. 405 Depositions of Wm. L. Sackett et al. (Filed April 20, 1908.) Notice of taking of depositions. Venue: Caption of cause. Notice addressed to defendant’s counsel, that on Monday, March 30, 1908, at 10 o’clock A. M., before Charles L. Binns, a notary public, at No. 916 Monadnock Block, Chicago Illinois. Tes- timony of witnesses named will be taken. Taking of said deposi- tions to be continued from day to day until completed, complain- ant deems the testimony of said witnesses necessary in said 406 cause. Witnesses’ names, W. L. Sackett, and other witnesses. Signed by complainant’s solicitor. Acknowledgment of re- 407 ceipts by Isham, Lincoln & Beale and Frank H. Scott. Here follows index of said witnesses. 408 Commissioners’ introduction. Depositions of William L. Sackett, John M. Snyder, Leon McDonald, Wm. Hillebrand, Wm. Whigman, Clarence Palmer, John M. Sweeney, Eobert A. Orr, Geo. B. Fox, Benezette Williams, Wm. Kramer, and James 0. Heyworth. Said witnesses being first duly sworn, testified as follows : 218 William L. Sackett, -1-09 a witness for comiiiainant, testified as follows: Direct Examiuafiou . 410 Live at Morris, Illinois, am one of the Canal Commission- ers of the State of Illinois, became a member of that Board in June, 1902, and have held the position continuously since. Am and have been treasurer of the Board ever since I was a member of it. I do not know Harold F. Griswold or Harold T. Griswold, but he has transacted business with the Canal Commissioners for leases, contracts and so forth by his attorney, Charles A. Munroe. I first learned that Air. Griswold was desirous of securing a III lease of canal lands in the spring or summer of 1904. The way the negotiations began was, I think, Mr. Munroe was present at a meeting of the board and in conversation with some of the canal officials when I arrived to attend the meeting. AVhen I say Board I mean the Canal Commissioners of Illinois. My I’ecollection is that that meeting was held in the general offices at Lockport. At that time I think he wanted to make a lease for the use of what we call the towpath site of the canal for the purpose of flowing water along side of it. Oh, I think, at this time there was no discussion of anything in and about Joliet. -I think it was entirely below Channahon, just below the mouth of the Du- 412 Page liiver near the Kankakee. I think I had seen Air. Alunroe some few months before that, or possibly a year or a little more before that. That was, as I remember it, in one of the meetings of the Board of Canal Commissioners within a few months after I became a member, with reference to the proposition of a lease of some of the prop- erty which the Commissioners had in their jurisdiction and con- trol. That was in the vicinity of Joliet. 413 At that first meeting our negotiations had to do with the leasing of certain rights along the canal, as I recall, I think located within the limits of the City of Joliet, which would be necessary in the event of a development of water power near there, and a part of the proposition, as I recall, was the estab- lishment of a mill adjacent to the canal which would, if the scheme 219 as outlined was carried out, mean l)usiness over and upon the canal, and the canal was to be connected with the river or the waterway by a lock for the purpose of locking boats through and the use of the canal. . I think Mr. Munroe was interested as a party himself and in connection with a Mr. Gaylord. I think, strictly speaking, the site they wanted would be to the southwest of the center of Joliet. I think that was in 1903, I cannot tell the exact time. 414 I think a couple of contracts were executed with him at that time tentatively. The completion or rights were not to be given until certain payments, or an appraisal of the value of the rights at issue were determined, and the matter was never carried through to completion. No appraisal was made and the rights were not transferred. Contracts were signed intimating the terms upon which the completion of the proposition would go through. I think copies of those contracts are in the records and files of the Canal Commissioners. They are in the custody of Mr. Snyder, acting secretary, and I understand he is to be here. Q. You will see to it that he does produce copies? A. I have requested that he be here. I am not very familiar with the street (South street). It is within a half mile, isn’t it, or something like that, isn’t that right, Mr. Munroe? Mr. Munroe. South street is the south limits of the City of Joliet. We propose to build a dam at the mouth — at the head of Lake Joliet and the Canal Commissioners control the west side of the Desplaines Eiver from South street to dam number one, also rights in the upper basin. 415 The "Witness. How far from South street was the pro- posed location of the dam in South street? Mr. Munroe. A mile and a half southwest of South street. Counsel eor Complainant. That is along the river to the south- west of South street, or to the west of South street. Mr. Munroe. We owned property from the head of Lake Joliet to South street at that time. Counsel ^or Complainant. It would be down stream from the head of Lake Joliet? 220 Sackett, — Direct Exam. — Continued. Mr. Munroe. Xo, it was up-stream from the head of Lake Joliet. Counsel for Complainant. Are you able to state, Mr. Sackett, just where this proposed mill and locks were fo be which you have referred to in your former testimony — in the testimony you have just been giving? Counsel for defendant asked that objections be considered made to all cpiestions pertaining to negotiations in 1902 or 1903. As- sented to 'by counsel for complainant. 416 A. My response would be that in the absence of the contract passed upon at that time, that I cannot give a specific an- swer, and I would suggest that as to the details you ask Mr. Mc- Donald, who passed upon the details and the physical condi- tions, and is much more familiar with them than I am. Those doc- uments that were executed were simply contingent upon the later execution of further leases, dependent upon which a valuation, or rather an amount to be paid for the use of the property, and we had never — in the absence of anything of that kind being done we had never as an official body considered the documents issued as having any right or effect. I don’t know whether the Board had advised Mr. Munroe to that effect or not. 417 After the execution of these documents the subject of a lease or other rights near the mouth of the Desplaines Eiver was presented to the Canal Commissioners by Mr. Munroe in something like a year. It must have been nearly a year and a half, sometime in the spring of 1903 or in the spring of 1904. Dresden Heights is a designated point about at the junction of the Desplaines and Kankakee Eivers on the north side of the Illinois Eiver, about ten miles east of Morris. The location of the proposed dam of the Economy Light & Power Company is sit- uated, is colloquially referred to as Dresden Heights, and it would be just about on the north side of the Illinois Eiver where the Kankakee and Desplaines come in together and form the Illi- nois. 418 I should think it was along in February or March, 1904, that Mr. Munroe or Mr. Griswold came before our Board of Canal Commissioners with a proposition to acquire a lease or a 221 right from the Board of Canal Commissioners’ property ad- jacent to the Desplaines Eiver in that vicinity. I think Mr. Mun- roe was alone. I think his proposition was merely a discussion as to whether the leases desired could be made, whether the Canal Commissioners felt that proper consideration of canal operation would permit the consideration of the matter at all. Q. Did he describe, outline, and state in a general way what it was that he wanted! (Objection by counsel for defendant, and asks that all ques- tions pertaining to these negotiations be considered as ob- 4-19 jected to. This was assented to by counsel for complainant.) A. I think that he discussed the proposition of desiring in the event of the construction of a dam, banking water along certain portions of the tow-path bank of the canal, and of flow- ing in a certain strip of land adjacent to the tow-path at one point. Well, it may be that the erection of a dam was mentioned. Whether the specific location of any of the details were mentioned I 420 do not recall. My recollection is that it was a new proposi- tion to everybody and was merely a matter of discussion as to whether it could be considered at all, and that it was taken under advisement for the purpose of ascertaining what the propo- sition meant. I think the matter was simply one of general dis- cussion, indefinite and somewhat vague in form and detail. The proposition was whether it involved matters which we could act upon or not, whether we had the right to act upon them or not. I think Mr. Munroe was present at the next meeting of the Board. The custom of the board was to hold regular monthly meetings and special meetings at the call of the president, if anything comes up that seems to require quicker considera- 421 tion. It would be impossible for me to recall with any pre- ciseness what occurred at that or any subsequent meetings. The matter was under discussion at numerous meetings, covering a period of several months or weeks. I think that Mr. Munroe was present at both of the meetings. If I am not mistaken, how- ever, the matter had reached such a form at the subsequent meet- ings that a committee at that time was appointed for the pur- pose of going over the situation on behalf of the Canal Commis- .sioners, and making a report to the Board as to precisely what 222 SacheAt, — Direct Exam. — Continued. the matter under consideration involved. I think Mr. W. E. Newton, who was then secretary of the Board of Canal Commis- sitners, and Mr. Leon McDonald, superintendent, were desig- nated to go over the matter and report upon it. My recollection is that the proposition of Mr. Munroe was a lease, a lease of certain lands and a lease of the right of water flowing along the tow-path for a certain distance. Yes, I think the proposition of attaching the dam to the 422 tow-path had been discussed. As to the distance the water-* was to be backed up or flowed up, I think the term Chan- nahon was used to designate, possibly, the particular distance, al- though as I understood then and still understand, the rights did not give the use of the entire distance, that is, he would not use the entire distance, although he would use parts of it. I mean flow back to the Village of Channahon from the mouth of the river. Q. Keferring to the outline map of Will County which occu- pies page 15 of Ogle & Company’s plat book of Will County, you may state whether or not that page 15 in a general way gives a correct representation of the location of Desplaines Eiver as it passes through Will County from the extreme northeast into Du- Page Township, through DuPage Township, through Lockport Township and Joliet Township, Troy Township and Channahon Township down to the point where it passes into Grundy County? A. Yes, I think it does. Q. You see on this page 15 a pencil indication of the contin- uation of the Desplaines Eiver and the Kankakee Eiver to 423 a point of union just over the line into Grundy County. Now, that represents the Desplaines Eiver in passing through Chan- nalion Township, will go up stream from the bottom, go through Section 31, and just touches cornerwise Section 30 and 32 and then passes through Section 29, 20, and 21, touches 16 and 22, goes into 15 and so on upwards? A. That is the river you are speak- ing of? Q. Yes, that is the river I am describing, and the canal on the other hand is represented by — A. The river runs away from the canal some distance, I think. Q. Now, turning to page 25 of the same ])lat l)ook, the canal is represented as touching the river, beginning with Section 31, all the way through 31 and up through the southeast corner of 30, and then in Section 29 of the river and the canal separate, and the tract of land lies between them which has the name of Peter Conroy, with the figures 146.32 which I am informed refer to the acreage of the tract which runs between the river and the canal, and the canal passes on up directly through the Village of Chan- nahon in Section 17 and up Into Section 8, where it is labeled ‘^Wide water.” More strictly s])eaking, this large inaj) of Chan- nahon Township, occupying the whole of page 25, represents tlie canal and the river as making a loo]) ; tliey come into Section 424 31 running southwest and near the center of Section 31, they turn and run northwest from about the center of the section, and as the two streams run northwest there is apparently an island or small tract of land between the river on the south and the canal on the north, and then from the head of that island there is a heavy black line apparently dividing the two. Now, with reference to that map, Mr. Sackett, you may state how far up the canal it was that Mr. Munroe ])i*oposed to acquire from the Commissioners the right to flood the bank of the canal? A. My recollection without the contract referred to was that the flowage was through this Section 31 and a part of 30, that is, this corner of 30 (indicating on plat). That would be on the southeast corner, and there would be points further up the river towards Channahon where it would touch. Yes, up the canal where it would touch, but not a continuous flow, althougli I would no]t be certain now that the proposition did not contemplate the purchase of this tract, the Conroy tract, which might overflow, but I hardly think so. M"ell, I would 425 not assume to say that anything was said about Section 29, or how far up the river the flowage would be. I don’t remember whether anything was said at that time about the proposition other than by the Committee as to what influence the Canal Com- missioners might have. He was not proposing to build a dam in the canal. The dam was to be in the Desplaines Eiver. I don’t know as he stated at the mouth of the river or the precise location 224 Sackett, — Direct Exam. — Continued. of tlie dam. Tt was developed in the course of the negotiations to be at substantially the point where the work has now been begun on a dam by the Economy Light & Power Company within the last four or five months. The wmrk is progressing down there at the mouth of the river by putting in a coffer-dam, and the par- tial erection of a dam there. I think it is at a point covered by the leases made. I have 426 already seen the large bine print map marked, ‘^Sanitary District of Chicago, map showing parts of Sections 31, 32, Town. 34 North, Eange 9, the Third P. M., Will County, Illinois, Chicago, February, 1905, scale one inch for each one hundred feet.” I have seen that map before. It was on exhibition at the Com- mtitee Eoom when I appeared before the Legislatwe Committee of the Illinois General Assembly last December. I see on that map the proposed dam represented by a reddish brown strip labeled ^‘Proposed dam crossing the Desplaines Eiver at its month.” The broad green strip which is shown on this tract some five or six inches wide and a yard long or thereabouts I think 427 rejDresents the so-called 16-acre tract of land, which at the time of these negotiations was the property of the Canal Commis- sioners. There is a tow-path house in the vicinity where it is labeled in red ip^on that map, ^‘Building to be raised.” I have been at the point referred to on the map by the word aqueduct”. That is where the Kankakee feeder was brought across the Desplaines Eiver so as to discharge into the canal several years ago. The aqueduct was connected in the usual way with the so-called feeder, which was in effect a canal excavated, of course, through that 16-acre tract up to and attached to the 428 canal. The canal with its bank extending across the 16-acre tract is still there in place to be seen. The piers of the aque- duct itself are there, but the aqueduct is gone. The narrow green strip of the map extending from the county line north and west and down the Desplaines Eiver on the one side, the canal on the other, to the mouth of the Desplaines Eiver represents the tow- path bank of the canal. I don’t understand that map to the west represents what was actually leased, although perhaps it does. I am not sure about it. I thought the lease was practically to the point of the dam, that it went from there up stream. Going up stream above this 16-acre tract then w'e have the lake, but the green strip with the river 429 on one side and the canal on the other is the tow-path. It con • tinues all the way through the 16-acre tract. Q. Is that the tow-path which it was proposed to overflow oy these negotiations? A. Not overflow, Mr. Starr, but to flow upon. Flow upon and up against, not overflow, although there are many seasons of the year when it not only — the water in the river only would flow up against and along the tow-path, but in some points actually overflow into the canal. There are some points along the tow-path where the river at times overflow the tow-path and into the canal. There is one point where it overflows the entire bank into the canal. My understanding is that the lease gives the right to flow water up against the tow-path, not over it. 430 The Committee, consisting of Mr. Newton and Mr. McDon- ald, I think, made a report orally. I think I was present. I think the substance of the report is set forth in the preamble of the contract. I refer, I think, to the so-called flowage contract dated September 2, 1904, between Harold F. Griswold and the Canal Commissioners relative to the attaching of the dam to the tow-path and the flowing of certain lands. The special right and pirvilege which Mr. Munroe was seeking on behalf of Mr. Gris- wold in the making of this negotiation — I cannot recall distinctly now what he said he wanted. 431 The matters under consideration that the Canal Commis- sioners had to do with were simply the matter of the right to flow water along this canal bank and over the so-called 16-acre tract, as I recall the matter, and to attach the dam to the tow-path at the site where it was to be erected; I mean to the tow-path bank. The tow-path bank is all that is between the river and the canal at that point. The north bank is called the berm bank of the canal. Of course there are places where there is property be- tween the tow-path and the river, but the tow-path is on the '22G Sackeit ,~I)i red Exam. — Continued. ]'iver side of the canal all the way through this part. Well, 432 possibly the tow-path is in some places more than 90 feet wide and other places considerably less than 90 feet, though the toe of the bank comes in both cases to being veiy close to 90 feet, because it is an artificial bank constructed through there. In the immediate vicinity of the dam it is an artificial bank. When the report was made by the committee that is contained in the preamble of the fiowage contract I think the Canal Com- missioners assigned no reason why the contract should not be entered into. I think a draft of the proposed contract as 433 outlined by Mr. Munroe was turned over to our attorney, Mr. Walker, to look into the legal status of the matter. By action of the Board, I do not think that any engineer had been employed to investigate this situation and the effect of the proposition. I understood that the members of the Board had consulted with an engineer relative to the matter and we depended very largely, too, upon the knowledge of Mr. McDonald relative to matters of that sort, and upon Mr. Keough’s knowledge of those matters. Mr. Keough had been connected with the canal for over forty years and was acquainted with all of the physical conditions. He died last January, this year, 1908. Q. You have spoken of the proposition being one to confer the right to flow water along the canal bank and to attach the dam structure to the tow-path bank, and also of flowing these 16 acres of land. Was there anything proposed, as you understood it, to tbe Board other than that! A. Well, there was a discussion, I think, as to whether or not the Canal Commissioners had any right in the river or controlled the river with reference to putting in a dam, with reference to giving authority to put in a dam. 434 Q. MBiat was said on that subject by Mr. Munroe to the Board or the Board or the members of the Board to Mr. Munroe! A. Well, without stating the proposition except gen- erally, as already stated, I think the matter of whether the Canal Commissioners controlled the river or not, was discussed, I think the Canal Commissioners expressed the opinion they did not have any control of the Desplaines Biver at that point or at any point 227 except tlirougli Joliet where it had been part of tlie canal. I think that was Mr. MMlker’s conclusion after investigating the matter. Q. Did you state that to Mr. Munroe? A. Yes sir, I think those matters were discussed with Mr. Munroe and I think that that belief on the part of the Canal Commissioners was stated. Q. In all these negotiations Mr. Munroe stated that he appeared as the attorney for Mr. Griswold! A. Yes, I think that Mr. Mun- roe appeared merely as the attorney for Mr. Griswold, I don’t re- call that he ever mentioned haAung any other interest in the matter at all. Eeferring to the document dated September 2, 1901, being 435 copy of Exhibit A attached to the hill, and directing attention to the preamble, here it says in the preamble (this by Mr. Starr) : ^A¥hereas said party of the second part — that is Gris- wold — claims to be a riparian owner along certain streams of water called the Desplaines Kiver and the Illinois Eiver in the Counties of Grundy and Will, State of Illinois, and as such riparian owner is about to improve said river by the construction of a dam and other works across the mouth of said river in the County of Grund}^ and State of Illinois, with a crest of such height that the pool formed thereby wi)l be on a level with the waters of Lake Joliet (a portion of said Desplaines Eiver in M^ill County, Illinois) and is about to improve said Illinois Eiver by deepening the channel of said river in Section 25, Township 34 North, Eange 8 East of the Third P. M.” That part of the preamble, stating the claim of Griswold and the proposal by him to erect a dam and deepen the Illinois would come entirely from Mr. Griswold or his attorney, his attorney Mr. Munroe, would it not! A. We understood that they had purchased the property as stated and were the owmers of it. Q. And that they were proposing to put a dam across the Desplaines Eiver at that point and to deepen the Illinois Eiver down below the dam! A. I do not want to be understood as try- ing to state about the location of this dam as the result and 436 understanding of some of these preliminary conferences, be- cause while the official location is indicated in this contract with some definiteness, I am not prepared to say that in the pre- 228 Sackett, — Direct Exam . — Continued. liminary discussion tllat location was definitely understood by my- self, or perhaps the other members of the Board. So far as the claim about the ownership of the property, that was understood from the outset. I mean I don’t recall now specifically what 437 may have been said about the particular or definite location of the dam. Before we got through the location was made. I don’t recall that the Canal Commissioners ever assumed to have any rights on the river at this point or any right to give anyone else any right. Q. Was the Desplaines Biver under the Canal Commissioners’ control? A. No, the Canal Commissioners owned the 16-acre tract but I want to say that I did not understand at the time of these negotiations that they fronted upon the river. The riparian owner- ship, as expressed in the contract, so far as my understanding went at that time, applied merely to where the tow-path branch or the 90-foot strip was between the canal and the river. Q. What claim did your Board or any member of it make to. him of any right to control or to confer upon him the privilege of deepening the Illinois Biver? A. I don’t think the Board as- sumed that they had any power to give anyone the right to do anything in the river, so far as the river itself is concerned. 438 Q. Did you have any such right, did you understand? A. I don’t think we did. I don’t so understand. Q. Did you explain to him that you did not have any such right ? A. I don’t know whether I, as a member of the Board, or whether any member of the Board, attempted to specifically give him that information in detail. I think that it came about through Mr. Walker stating as a legal proposition that he did not believe that the Canal Commissioners had any right to convey or to lease to anyone, so far as the river itself was concerned. Q. Either the Illinois or the Desplaines? A. I think that is the situation. Q. I direct your attention to the second whereas here, Mr. Sackett, in this Exhibit A: ‘AVhereas, the State of Illinois is riparian owner at different points on the Desplaines and Illinois Bivers within the territory covered by this contract, as well as the owner of the hereinafter described parcels of land under the control of the Canal Commissioners, which are not connected with the water power upon the Illinois and Michigan Canal, which said riparian rights and said land have never produced a revenue, and said land is now productive of no revenue, swampy, unfit for^ cultivation, and partly covered with water, and said lands are so situated that the riparian rights appurtenant there- 439 to cannot be made available by tlie state to create water power.” Now, with reference to that, what were the riparian rights which the State or the Canal Commissioners did have in the property described in this instrument? The property describ- ed in the instrument is described fully in clauses one and two of the contract? A. Well, this second whereas of the contract, to the best of my recollection in substance is the report made to the Commissioners by Mr. McDonald and Mr. Newton, and the riparian rights referred to, as I understood them at that time, had reference to the tow-path bank and the 90-foot stdp wherever the bank or the strip was adjacent to the river, and undoubtedly this 16-acre tract of land which was included in the lease; but at that time, speaking of my own knowledge of the matter, I did not under- stand that this 16-acre tract of land was located upon the river bank. I, of course, since have discovered that it was. I sup- posed that — of course I understood that the land was to be over- flowed, but I supposed that there was intervening property be- tween this and the river. Q. Then, as to this clause that said lands are so situated that the riparian rights appurtenant thereto, cannot be made avail- ble by the state to create water power, if you at that time supposed that this contract did not touch the river, then you would have no information at all on the subject of its availability 440 to create water power ? A. Oh yes, I would have this in- formation, that none of the property which we had along there could be made available by us to create any water power, first, be- cause we had no funds with which to create water power, and second, even if the State desired to create water power it would be necessary to purchase property other than that we had con- trol of in order to make any power available. Then this property described in the preamble could not be made available by the State to create water power without the use 230 S a c k ett , — D irect Exam. — Continued. of funds in developing it, and the Stafe would have to purchase considerable other property. This property, in and of itself, with- out ^very material expense, could not have been made available for any purpose or used, as far as the State was concerned. So far as this 16-acre tract was concerned, I think it was absolutely physically impossible to attach a dam in any shape, manner or 141 form, even though they had provided to develop power. This phrase, ^^It could not be made available,” etc., as I under- stand it, could not be made available for the two reasons I have mentioned, and so far fis I know there was no erection of a dam which would be on or touch this tract. I make a distinction as to the tract as against the tow-path bank at other points. Well, this 16-acre tract is low land, and the erection of the dam would flow water over it in low water stages, and in ordinary or high water stages overflow it anyway without any dam. 442 Counsel for .Complainant. Now, I direct 3"our attention to the third ^Svhereas” of the document, Mr. Sackett: Whereas, said party of the second part is desirous of ob- taining the right to use, overflow and damage (in such man- ner as will not interfere with navigation on the Illinois and Michigan Canal) so much of the said property as may be necessary in the construction of said dam and other works in the improvement of said Desplaines River; therefore, in con- sideration of the premises and the sum of twenty-two hundred dollars in hand paid by said party of the second part, the re- ceipt whereof is hereby acknowledged, it is agreed as fol- lows what was said by the Commissioners to Mr. Monroe and by Mr. Munroe to the Commissioners in respect to that statement, that he desired the right to use overflow and damage so much of the prop- erty as may be necessary in the construction of the dam! IVhat damage did that refer to! A. I don’t know that the use of the word dam there has any essential meaning there beyond the mere overflow of this tract of property by water. 443 It refers to such damage as would be caused by the over- flow. AYhen this dam is constructed this 16-acre tract would be overflowed all the time, if not it would be under water one month, two months, three months or five months of the year. The wide water of the Desplaines River is called Lake Joliet, as shown on page 15 of the Will County plat l)ook. It is some eight or nine miles above the county line. 444 I am unable to recall what specific figuring was involved in reaching the consideration of $2,200. I think that the circum- stances at the time prompted the Commissioners to believe that the sum was adequate for what was to be used. Q. I direct your attention to clause first of the contract, of tlie contracting clauses, which is as follows: First: That said party of the first part consents that said party of the second part shall have the right and authority in so improving the Desplaines Eiver, to construct a dam and other works across the Desplaines or Illinois Eiver at a ])oint near the confluence of the Desplaines and Kankakee Eivers in the County of Grundy and State of Illinois, with a crest at an elevation of not to exceed minus seventy-three and two- tenths (73.2), Chicago citv datum, but in no event shall the back water caused by said dam recede beyond the northerly 445 limits of ‘Lake Joliet’ (said ‘Lake Joliet’ being a wide por- tion of the Desplaines Eiver about six miles in length and ly- ing south of the City of Joliet in the County of Will and State of Illinois) ; and further consents that said party of the sec- ond part may excavate in and deepen the channel of the Illi- nois Eiver in Section 25, Township 34, Eange 8 East of the Third P. M.” Did you understand you were conferring the right to dam the river upon Mr. Griswold in voting for that contract, Mr. Sack- ettl ; A. 5Vell, as I have previously said, the Canal Commissioners did not understand that they had any right of control over the river. I think I can explain why this provision was inserted, or in so far as the right to attach the clam to the tow-path bank, to give us authority to designate what should be done, that having valu- able rights through the City of Joliet which might be used by the Sanitary District in conjunction with the state or the state in con- junction with the Sanitary District, that the limitations as to where the raise of w^ater should extend was fixed so as not to interfere with the possible development there in the City 446 of Joliet where the state did have rights. I don’t think that any of the Canal Commissioners assumed to have any control, however, over the river or what should be done in the river, but 232 Sackett, — Direct Exam. — Continued. merely to give the right of attachment, that they set the limit— the extent or limit to which water should be backed up. Q. I am directing your attention to the first part of this clause one. You have explained how that affects the north end limit of the flowage. Now, directing your attention to the first half of it, ‘^that the party of the second part shall have the right and author- ity in so improving the Desplaines Eiver to construct a dam and other works across the Desplaines or Illinois Eiver at a point near the confluence,” and so forth. IVhat was said by you or other members of your board, or the attorney or representative of your ])oard at the meeting where this was taken up with Mr. Munroe, to him, and by him to you on the subject of your authority and power to confer on him authority to dam the river? A. So far as the river itself was concerned, I think that the Canal Commissioners understood and were so advised that they had no right and au- thority. Q. Did you so tell him? A. I think the matter was discussed with Mr. Munroe, possibly in our presence — probably in our pres- ence. 4-1-7 Q. Is that your best recollection? A. Yes, sir, his doubt of our having any right or authority to assert — to give any right or have any control over the river ; but I think Mr. Munroe desired to have these matters set forth, and my recollection is that Mr. IValker’s position to us was that if we did not have any right or authority we were not doing anyone any harm by relinquishing anything that we did not have. Q. IVhat did Mr. Monroe say to that? A. I don’t know that I am prepared to say that, other than that he would like to have it in there. I don’t know but he ignored the contention raised by us that — I think my understanding of the proposition was a good deal on the basis that if some fellow came to me and said he would give me five hundred dollars for my interest in the Masonic Temple that I would simply say all right, I will take the money and you can have any interest I have got. Q. lYas some such illustration as that used in the talk with Mr. l\[unroe? A. No, I don’t know that an illustration of that sort was used, but I used it merely to show the idea. I think Mr. Walk- er’s contention was that we had nothing to give, and if Mr. Munroe wanted to pay for something that we had nothing to give, there was no harm done. I am unable to state how the heiglit of the dam was 448 fixed. I j^resmne that that is some suggestion emanating from the knowledge of Mr. McDonald of the situation. I did not understand that the Canal Commissioners have any control over Lake Joliet. Q. Now, take the second clause there in that contract, the sec- ond granting clause : ‘‘Second, that said i)arty of tlie second ]uirt shall have the right and authority to flow the 90-foot reserve stri]) of the Illi- nois and Michigan Canal in Sections 25 and 30, Township 34 North, Eange 8, Grundv Countv, Illinois, and in Sections 31, 30, 29 and 20, Township 34, Eange 9, AVill County, Illinois, u]) to the canal bank; also so much of the north fraction of Sec- 449 tion 31, Township 34 North, Eange, 9 East of the Third P. M. as lies south of the 90-foot reserve strip along the tow-path side of the Illinois and Michigan Canal, where the same may be overflowed by reason of the construction of said dam and other works, with the crest hereinbefore specified, together v/ith the right to flow the water u]) against the tow-path bank of the Illinois and Michigan Canal, in said sections, provided the tow-path shall be protected and preserved as hereinafter provided.” AVith reference to that, Mr. Sackett, we have the expression used there repeatedly, the 90-foot strip and the 90-foot reserve strip. I would like to have you explain that phrase to us. Just tell us what that means. A. Well, through the odd sections along the canal, there is a 90-foot reserve strip on either side of the canal. As the canal was laid out, it was supposed to have been 60 feet in width with a 90-foot strip on either side, making the total width for canal purposes 240 feet. 450 The odd numbered sections of land were reserved as canal lands, and in those sections the 90-foot reserve strip pro- visions have remained operative. In even sections they have what was necessary to support the canal, without reference to its width. That according to the decision in W erling vs: Ingersoll, 181 U. S., page 131. 234 Sackett, — Direct Exam. — Continued. 451 Q. Xow, in clause tliiiTl, Mr. Sackett, there are provisions which read as follows : Third: That said part}- of the second part shall have the right to excavate in and remove so much of the Kankakee feeder (an abandoned feed of the Illinois and Michigan Canal) lying north of the Desplaines Eiver and south of the 90-foot strip in Section 31, Township 34 North, Eange 9 of AVili County, Illinois, as may be necessary to discharge the waters of the Desplaines Eiver through said Section 31 in a proper manner, and shall also have the privilege of removing an old aqueduct and piers in said section.” Directing your attention to this provision, to remove so much of the banks of the feeder as lie north of the Desplaines Eiver, and directing your attention to the location of the Kankakee feeder upon the large blue print, the portion there referred to as author- ized to l)e removed, is that part of the feeder which crosses this lb-acre tract and consisted of an elevated embankment wdiich con- tinued the feeder from the north end of the aqueduct across the 16- acre tract to the canal, is that right! A. Yes, sir. Q. It says, ^KVs may be necessary to discharge the waters of the Desplaines Eiver through said Section 31 in a proper 452 manner. 5Vhat was said between Mr. Monroe and the Com- missioners as to wdiat was meant by a proper manner! A. I would be unable to recall now what was the discussion on that point. I think the removal of those feeder banks, as I have described, and the overflowing of that 16-acre tract by the construction of a dam at the height proposed would render it impossible to ever use the feeder again as conveying water through the Kankakee Eiver into the Illinois and Michigan Canal. Q. The fourth clause of the contract provides as follows: ‘‘Fourth, that said party of the second part shall have the right to erect, attach, repair and maintain said dam and other works or structure up against the tow-path bank of the Illinois and Michigan Canal in Section 25, Township 34, North, Eange 8, East of the Third P. M., Grundy County, Illinois, but not so as to interfere in any manner with the use of said tow-path • in connection with said canal.” You may state whether it was pointed out and fixed any 453 more definitely than it is fixed by this language just where that point of connection was to be made? A. So far as T know, I should say that it was not. Q. Then follows clause five, giving the right to divert from the Desplaines into the Kankakee Eiver a certain stream of water called the Kankakee cut-off, carry it through, over and across the Kankakee feeder, and the 90-foot strip on each side of the feeder in Section 5, Township 33 North, Eange 9, East of the' Third P. M., and the said party of the second part is granted the right to construct on the bank of said feeder controlling gates for flood pro- tection from said Kankakee Eiver. In that clause, Mr. Sackett, there are two streams with the work Kankakee’^ in them — three streams referred to. One is the Kankakee Eiver itself, another is the Kankakee feeder and another is the Kankakee cut-off. The Kankakee feeder and the Kankakee cut-off are not the same thing! A. I don’t understand that they are. Q. On this large blue print once more you have already indi- cated the Kankakee feeder where tlie words appear, partly in Grund}^ County, and crossing the Grundy County line and the river to the canal. Now, over towards the right hand in here you observe a dotted line which is labeled the south section line of Sec- tion 29, 34, 9, north section line of Section 32, 34, 9. Just below that there is a representation of a stream emptying into the 454 Desplaines Eiver, which is labeled the Kankakee cut-off. Is that the stream which is referred to in this clause hve as the Kankakee cut-off? A. I presume that it is, but so long as I have been connected with the canal, or had any knowledge of it, those matters have not come to my attention, for the reason that they have not been in use, and I do not feel prepared to discuss them in detail. The Kankakee feeder was itself a canal to bring water from the Kankakee Eiver across the Desplaines Eiver into the Illinois and Michigan Canal. It is fed from the Kankakee Eiver by means of a dam. The Kankakee cut-off was a stream by which water from the Kankakee ran across into the Desplaines at that point. "With reference to what the works were which are provided by the clause, I will refer you to Mr. McDonald to make the explana- 236 Sacliett, — Direct Exam. — Continued. tion of wliat the understanding on the part of the 455 Commissioners was, for the reason that he evidently saw the purpose of this clause and understands it from an engineer- ing standpoint which I do not. Q. I direct your attention, Mr. Sackett, to clause six: Sixth: It shall he the duty of said party of the second l^art, subject to the direction of the Canal Commissioners or their officer or agent as hereinafter indicated to raise the tow- path or bank of the Illinois Michigan Canal from its present height not less than two feet to any additional height that may be necessary to prevent overflow, and to perjDetually thereafter maintain the same in good condition. The raising of said tow- path shall extend from a point in said Grundy County, where the dam or other structure of said party of the second part intercepts the said tow-path bank, to lock number seven in section seventeen, township 34 north, range 9 east of the third P. M. and when raised, the width of the top of the tow-path bank shall conform to the width of the tow-path as it exists at the present time.’^ Section seventeen referred to in this clause is the one in which the village of Channahon j)rincipally is situated? A. Yes, sir. The lock is the lock by which the canal is carried through 456 the Du Page Eiver, then the raising of the tow-path should extend from the location of the dam up to this point where this lock is just over the line into 17, as shown on page 25 of the plat book before us. They have raised the tow-path in the vicinity of the location of the dam and a short distance east of there, and have riprapped the bank. That was done during the months of September, October and November of 1907, I think. 457 It is stipulated that the plat book of Will County by Ogle & Company, 1893, and the Sanitary District of Chicago map, showing parts of sections 31 and 32, T. 34 N., E. 9 E. third P. M. by the witness in his evidence, may remain in the hands of counsel for complainant and be produced at the hearing without being attached to the deposition. 458 Q. I direct your attention, Mr. Sackett, to the eighth para- graph of the contract. Exhibit A : ‘^Eighth : Permission is hereby given said party of the sec- ond part to use so much of the gravel or other material lying along the said Illinois and Michigan Canal, the property of the State of Illinois, as may be necessary to raise said tow-path bank of said Illinois and Michigan Canal; such material, how- ever, to be taken out from places indicated or approved by the general superintendent of the canal, or other officer or agent designated by the Canal Commissioners, or other officers in charge. ’ ’ Do you know, Mr. Sackett, whether the gravel and other mate- rial that is there referred to has been made use of in such modifica- tion of the tow-path bank as you referred to this morning? A. My impression is that there is very little gravel or ma- 459 terial upon the canal property there or any portion of the 90- foot strip that could be made available. Then throughout the 90-foot strip there would not be any spare material that could be taken up and moved with safety. The piers were there the last I knew anything about it. 460 Q. TTow, take the ninth clause, that : ^‘Said party of the second part is hereby authorized to en- ter upon the lands or premises of the State of Illinois, part and parcel of the Illinois and Michigan Canal, and to enter upon said canal itself in a manner and to the extent that shall be necessary to raise and maintain the tow-path as above provided, and to attach and build said dam or other works onto said tow-path bank as herein provided, and to repair, maintain or renew the same as shall become necessary to the preservation thereof.’’ Was that provision drawn by you, Mr. Sackett? Did you per- sonally have to do with the drawing of that? A. Ho, sir. Q. In the elevation of the tow-path as you have referred to, pro- vision, I suppose, has been made in that work that has already been done for broadening the base of it to take care of the increased height, has there or has there not? A. Well, this provision is un- doubtedly the recommendation of Superintendent McDonald, and I presume contemplates the broadening of the tow-path bank, nec- essarily would have to be widened out. Q. And this clause was put in to cover and authorize that? A. Yes, sir ; I think so. Q. Take the tenth clause, which is to raise the buildings and 461 garden of the tow-path house-keeper, has that been done? A. It had not been done the last that I knew of the situation. Q. You have not got around to that yet? A. No, sir. 238 Sackett, — Direct Exam. — Continued. Q. Clause eleven provides in substance that all the work here- inbefore provided for or which shall affect the canal property or interests shall be done under the supervision of and to the satis- faction of the Canal Commissioners or their duly authorized agent or agents, and not otherwise. Was there any other provision to secure the accomplishment of that result by way of a bond or otherwise, Mr. Sackett? A. I don’t think any bond was required under this agreement. The Canal Commissioners, I think, took the position that unless the work was done to their satisfaction they could abrogate the entire agreement at any time for protec- tion to themselves. Q. The twelfth provides for payment of the cost of inspect- ing the vmrk. Yvhat is the cost of inspecting the work, how does that arise, or how would it arise? A. The Canal Commissioners will have a man upon the ground to inspect this work for them, and bills are to be rendered against the people representing the inter- ests of Griswold, and those bills are to be paid by them. Q. To what extent has that been done in so much of the 462 work as has gone on up to this time? A. Up to the time of the death of Mr. Keough he had charge of this matter, and what work was done, so far as the canal interests were concerned, was under his direction. Whether or not any bills have been paid or any been presented I am not in a position to say at this time. The work was stopped by injunction on the 31st of December. That was before he died. No work has been done since that I am aware of. No canal inspector called there, none appointed. The inspection that is provided for by section 12 is the same thing as the supervision that is referred to in clause eleven. If Mr. Keough ever made any report he would make it to Mr. McDon- 463 aid. I have never seen any report or certificate of inspection or anything of that kind. No claims for damages have been brought against the state up to this date. On the same day that this flowage contract was 464 made there was a lease made from the Canal Commissioners to Harold F. Griswold. I think the fiowage contract had been under discussion and practically agreed upon up to the time of the introduction of this lease. The lease was second, or prac- tically at the same meeting, but it came in after the tlowage con- tract had been debated, considered and practically decided on. My recollection is that this lease came as a result of discussion rela- tive to the rights recited in the river, and the discussion came as a result of that. I refer, as I referred to it this morning, either the president of the Board or the attorney for the Board saying to Mr. Munroe that we did not consider we had any right or juris- diction to give in the river. I think Mr. Munroe ’s position was that if we were correct in the assumption that we had no rights in the river that it would do no harm for us to allow them to be 465 set forth, and i)erhaps might do them some good. I think he stated that in substance; something of that sort was stated. This lease came as a sort of secondary consideration of the flow- age rights as discussed, and to make more definite and certain what there was to be covered, and I think to make more certain the duration of time and the compliance with the statutes. In other words, I think that Mr. Munroe had come to the conclusion that there was a question about the flowage right contract, so- called, and to make it definite, certain and legal that the matter should be covered by the lease which was prepared, I think, pre- sented and considered at the same meeting and executed, that the flowage contract was executed. With reference to the time, I had in mind the proposition of the duration authorized by statute Vvfliich the Canal Commissioners could make a lease for, namely, 20 years. Mr. Munroe ’s conclusion was made known to me by what he said. I am making my statement from recollection of the discussion as it arose and what he said when he stated his position. He then asked for the lease in addition to the flowage contract. Q. And of course — I observe there is no time limit in the flow- age contract, except that here and there it says, ^‘Perpetually and at all times.’’ A. I don’t think there was any idea on the part of the Canal Commissioners to give any grants of leases for a longer period than twenty years. All of the Commissioners un- derstood that the statute provided a twenty year term. (Mr. Porter, counsel for defendant, objected and moved to exclude all the testimony offered by the witness during the afternoon session. Agreed that it may be understood that 467 Mr. Porter objects to all these questions in regard to the mak- 240 Sackett,— Direct Exam . — C on tin iie d . ing of this contract with the interpretation of the contract, either by himself or the Canal Commissioners or anyone else.) I think both contracts were prepared and voted for substantially at the same time. The pole lease or contract, I think, was 468 executed at the same time, I don’t think it came up for discus- sion until the day of the final meeting when all the instruments were executed, but they were all carried through at the same time. That would be a continuous transaction. 469 Of course it was the fiowage contract that had occasioned the consideration of and discussion of the matters to be cov- ered. This lease, I take it, covers substantially, and exactly I think, the premises covered in the fiowage contract, except it elimi- nates all references to the construction of dam and work in the river. The agreement, sometimes called the pole line lease, bear- ing date September 2nd, 1904, was executed at the same meeting. I think this lease was prepared before the execution of the othei', and they were all executed, I think, at the same time and at the same meeting. The discussion of this, if I am not mistaken, the came up during the time of the meeting, the proposition arising as to the necessity of transferring this power somewhere and this right being desired. I do not think this came up for discus- sion prior to the time of the final meeting when the instru- 470 ments were all executed, but they were all carried through at the same time. The Canal Commissioners have a line that they have been us- ing for the operation of the pumps at Bridgeport, obtaining power from the Economy Light & Power Company at Joliet. We do not own the line, but it was put up for our convenience under a con- tract for the operation of the Bridgeport pumping plant. It was put up by some pumping company, which I believe was under the direction of, or associated with the Economy Light & Power Company. This line from Joliet to Bridgeport was put in some years ago, long before the lease to Griswold of September 2, 1904 (and which has passed by assignment to the Economy Light & Power Company) was heard of or discussed, so there is nothing to that as far as the Canal is concerned, except for operating the Bridgeport pumps by electric power. It was put up for the use 241 of Economy Light & Power Company under this contract, but 473 that was some years before this other matter came up. As far my understanding of this matter goes, the pole line put in between Joliet and Bridgeport is solely for the use of the Canal Commissioners in the operation of the Bridgeport pumps, and is not for commercial or general use at all. Directing my attention to the large blue print. Sanitary District of Chicago Map, just northeast of the county line, where the feeder crosses the 474 line, the feeder and the 90-foot strip along the side is repre- sented by a strip on each side of the feeder that is colored green. This lease, which specifies that it is ‘Do have and to have and to hold, subject to a contract dated September 2, 1904, to said Harold T. Griswold, atfecting said premises,^’ relates to this flow- age contract. Exhibit A. As to the length of time that the right contained in the flowage contract was to run, I don’t know as I can answer that, beyond the statement that the agreement as finally determined, especially the agreement made co-incident with the flowage rjght and ref err ring to it, is for a period of 20 years. That was all that the Canal Commissioners had in view. 475 I am not positive as to exactly what the discussion on that particular point may have been. I am confident that in the discussion of the legal status of the matter, that Mr. Walker made the statement that we had no authority to make any lease of canal property for a period exceeding 20 years, and I believe it was stated in the presence of all parties. It was a little difficult for me to distinguish these conferences of course. The Commission- ers and Mr. Walker had conferences when Mr. Munroe was not present, and then again Mr. Munroe was present when we dis- cussed these matters. Relating to what was said in reference to the provision in this lease for an option for first right in the lessee to re-lease and acquire for a new term of 20 years the 476 same property, my recollection is that Mr. Walker suggested the desirability of that provision, and the necessity of it un- der the provision of the statute ; that the term should he expressed, and most canal leases provide for a cancellation upon notice, and I think that feature was discussed; that if any work of this sort, if there was cancellation provided upon 30 or 60 days’ notice, 242 Sackett, — Direct Exam. — Continued. that it would hamper this proposition. By this proposition I mean the plan that Griswold and his assigns had in view, and 477 that it is therefore made in the form that it is, leaving the right to the state, through the Canal Commissioners, to deter- mine whether the lease should extend beyond the period of 20 years, and if it did, then upon what terms the future rental and value of the property should be determined. These negotiations were begun before June 11, 1904, being date of a recommendation by the Canal Commissioners to Governor Yates. At the time I made that recommendation to Governor Yates that that sale should be made, the question of sale, as well as the question of a flowage contract and lease were being talked over and considered. I think Mr. Munroe suggested the desirability of a sale of this so- called 16-acre tract, In preference to a lease if the same could be made. Of" course that recommendation left the consideration of Hie lease applying to the depth of the bank aside from the 16- 478 acre tract. I received from Governor Yates an approval to the sale under date of the 13th of June. The matter of the sale was handled by the president and super- intendent. They had consulted engineers and other parties rela- tive to some of the features of the matter, and my understanding was that after the proposition of the sale had become known through the advertising required by law, there were other parties who went to them with the suggestion that they would like to see this property and might want to buy it. For that reason when the time of the sale of the property came, the president of the 479 Board had the sale postponed, so that these parties might visit the ])roperty and see whether or not it was of value to them and whether or not they desired to make any bids upon it. I think the parties did visit the property, but reported to President Snively that they had no use for it, it being valueless to them for any purpose they could put it to, and the conclusion was then reached that perhaps it would be better to withdraw the tract from sale entirely and to make the lease that Mr. Munroe had suggested in the first place. ^Ir. C. E. Snively is the president of the Board, and the source of my information, as to what he reported to them. I do not recall whether he mentioned the names of the other ])arties at that time or not, further than 243 tlie fact that Mr. J. W. Arnold of Lockport either was one of the parties who desired to look over the property, or represented some- one who desired to look over the property. He is a man who has done some work in the real estate busines, and I nn- 480 derstand he makes that his business. He was formerly a United States marshal here. The result was that after having obtained the approval for the sale, I advertised for the sale, and then the sale was called off, and it was subsequent to the sale being called oft' that the flowage contract and the 20-year lease and the pole line lease was made on the 2nd of September, 481 1904. The property was to be sold on the 2nd day of Aug- ust, 1904, and either upon that date, or a day or two before that, notice was given to abandon the sale at that time. I do not know whether a meeting of the Commissioners was held on the day and place advertised for the sale or not. I would have to look at the record before I could state whether the meeting was held at that time or not. If a meeting was held upon that day, I attended it. Subsequent to that time I gave a notice of rec- ommendation to the Governor, under date of November 1st, 1904, again recommending it for sale. That was after the flowage, con- tract, the lease and the pole-line lease had been executed. Those that I have been testifying about are the ones that I referred to in this recommendation, wherein I recommended that this property be sold subject to the right of flowage and lease to Harold T. Griswold. Shortly after that I received the approval of the sale by Governor Yates, after the date of November 2nd, 1904. 482 And thereupon it was advertised for sale to take place on file 6th of December, 1904. I think the sale took place on that date; I was not present. After that, on the 6th of January, 1905, I made this deed to Mr. Griswold, which is Exhibit J of the bill. This provision subject, however, to the terms, conditions and provisions of the flowage contract and lease made with said Harold F. Griswold and bearing date September 2nd, A. D. 1904, which terms, conditions and provisions still remain in full force and shall be fully kept and performed” referred to the flowage contract and lease of September 2nd, 1904. As to how the phrase Y which shall be fully kept and performed” came to be inserted 483 in that deed, the matter was turned over to Mr. Walker to prepare and I presume that he had, in mind additional pro- 244 Sackett, — Direct Exam, — Continued. tection so far as tlie rights of the state were concerned. The original contract, which is known and described as the Kankakee feeder lease, was entered into on the 8th of August, 190f\. I could not say whether there was any advertising or anything of that kind preceded the execution of that document. As to how this’ contract came to be executed, Mr. Munroe had been to the com* missioners for some time prior to its execution, after the execu- tion of the other leases, indicating a desire to have this lease, and I am not positive as to what course was pursued without referring to the record, hut my present recollection is that the matter was referred either to Mr. Walker or to Mr. Walker and Mr. McDonald for the purpose of investigating and reporting a conclusion 484 upon the matter, and it was determined that we had little, if any, interest in the premises that we could maintain, and finally determined that the lease should he made on the terms ex- pressed. Q. This recites in the preamble:- ^AVhereas said parly of the second part has made application to the Canal Commissioners of the State of Illinois to lease the right of the state to divert the waters of the Kankakee Eiver into the Kankakee feeder and discharge the same into the Desplaines Eiver, and also the right of the state to reconstruct the dam, the property of the State of Illinois, across the Kankakee Eiver, locating it, and the right of the state to repair the hank of the said Kankakee feeder and to construct at each end of said feeder suitable gates for con- trolling the discharge and the said water to said feeder.’^ Had Mr. Griswold or Mr. Munroe for Mr. Griswold been presenting an application of that kind to the Commissioners prior to the execu- tion of this lease! A. Well, I think this refers back to the lease of September 2nd, 1904, and some of the provisions incorporated therein. I think this lease was to cover another possible construction 485 which they desired. As to Mr. Griswold, no leases or con- tracts have been made by Mr. Munroe other than those con- 486 cerning which I have now testified. I think Mr. Munroe se- cured a lease of a portion or a part of the Kankakee feeder proper described in this lease, for himself, a few months prior to this, but I am not certain as to what it was without the lease. 245 It simply involved part of this property that is described in this lease according to my recollection. This Kankakee feeder led from the Kankakee Kiver across these sections and across the Desplaines Eiver to the Illinois & Michigan Canal. A good many years ago, there was a dam across the Kankakee Eiver just below the point where the feeder connected with the Kankakee. There was no dam in existence at the time that this instrument was made. This dam is the one that was carried out and had not been replaced. The dam and the feeder had been abandoned twenty years before the decision of the court in Burke against the Board, that is they had gone out of use. They 487 had never been in use from before the time I entered upon the duties at my office. I think they were abandoned about 1870 or 72. My information came from either Mr. McDonald or Mr. Snively. I am not positive about the year 1872, but I was under the impression that it was somewhere about that time. (Counsel for complainant moved to purge the testimony of tlie statement of the witness on that subject.) The condition existing at the time the contract Exhibit C was written so far as the dam was concerned was that there was no dam there as far as I know. Nothing has been done by Mr. 488 Griswold, or his assigns, in the way of making any of the changes or works that are described in the above instrument. Q. I direct your attention to the provision just before the attestation clause of this instrument: ^Mt is herein further stip- ulated and agreed that the Canal Commissioners hereby expressly reserve the right to cancel this lease and recover possession of the land, property and rights above demised and referred to when- ever in the judgment of the Canal Commissioners or other lawful officers of the state at such time, having charge of the canal prop- erty, shall deem the interest of the state require it to place and use said property for said purposes.’’ You may state Mr. Sackett how that was that that clause came to be inserted A. I think that clause has reference to the future use of the feeder if re- quired. The commissioners wanted to be in a position to resume the use of the feeder at any time that they might desire and I think 246 Sachett, — Direct Exam. — Continued. there was some doubt expressed as to any authority to grant 489 its use. I think the view was taken that it was a part of the canal. It was a feeder to the canal, and at one time was used by boats plying the canal. They would go up the canal and then ply through the feeder into the Kankakee Kiver. Q. What was the meaning of the phrase used here, Mr. Sackett : ^‘The right of the state is under the control of the Canal Commissioners, to-wit: such right as is now under the Canal Commissioners to divert the waters of the Kankakee Eiver into the Kankakee feeder and discharge the same into the Desplaines River — I will modify that — you may state what discussions there were between the board and Mr. Munroe which led to the use of that clause! A. My recollection is that a legal opinion had been advanced by Mr. AValker that the length of time that the feeder had been abandoned made questionable any rights of the Canal Commissioners therein as a matter of fact I think it was stated by Mr. McDonald or other persons who had knowledge of the matter that there had been farmers or squatters who had taken possession of the property right up to the feeder bank or even across in some places. I am not positive that that is a fact, that is my impression, however. 490 I do not recall whether Mr. Walker advanced the infor- mation to the board that the restrictions in the law against the right of the Canal Commissioners to make leases of the canal itself applied to making leases to the feeder and that he doubted the authority to make a lease of the feeder, or not. 1 think I can say as a general proposition I believe that is Mr. Wal- ker’s opinion. It may have been presented in connection with this matter. In connection with this discussion he probably ad- vanced the proposition that the feeder stood on the same basis as the canal. I think the designation, such rights as the Canal Commissioners might have, is used frequently in this lease, and I think the term is used for the purpose of showing a doubt on the part of the commissioners of the right to part with it. The Board took the 491 position that the squatters had acquired rights against the state only in so far as the matter had been determined in the Worling case. 247 492 C ross-Examin a f i on . Mr. Walker, to wliom I referred, is the atttrney for the Canal Commissioners. I think he has been the attorney since 1901. I advised with him in making all these contracts, so far as the legal propositions were concerned. He lives at Rock Island. The Mr. McDonald, to whom I have referred, is the superin- tendent of the canal. I think he has been so since 1897. He was the one man connected with the Canal Board that had full detailed information of the physical conditions of all the property of 493 the Canal Board. We depended upon him for information in the engineering line. Q. Referring to this lease of August, 1905, relating to the Kankakee feeder, didn’t you have any information at the time it was made that the deed — the original deed of the land on which the feeder was constructed, contained a provision that the land should revert to the holders in case the feeder was ever abandoned by the state? (Objection on the ground that the question is irrelevant, in- competent and immaterial and as not cross-examination, and as not calling for and procuring the best evidence; calling for the contents of documents and statements about documents. It was stipulated that this objection might stand to all ques- tions of that character.) A. I do not now recall whether that proposition came up or not. If it did, Mr. McDonald would have presented it, and he would be able to tell better than I can. 494 Since the matter has been mentitned, I think I had heard of the fact of its existing along the feeder. I was under the impression that the feeder was abandoned by the Canal Commis- sioners about 1892. I could not tell whether the Chicago & Alton Railroad Com- pany and the" Atchison, Topeka & Santa Fe Railroad Company have built a solid embankment across that feeder because I have never been upon the ground where they are located. I know the railroad crossed the feeder but how I do not know. I had information that farmers or squatters had possession of some parts of the lands along the feeder. As to the detail of 248 S a cTc e 1 1, — C ross-Excim . — C ontiinied. fences and cultivation, etc., I was not familiar and am not now. I know only in a general way wh}^ tlie feeder was abandoned 495 by the Canal Commissioners; tlie pnmpa were established at Bridgeport by the City of Chicago for the purpose of sending a greater volume of water down the canal. I think all the feeders at the east part of the canal were abandoned, Sag or Blue Island feeders, this feeder and the Kankakee feeder. The Com- missioners adopted that other method of getting water into the canal and abandoned the feeders. I am not sufficiently acquainted with the physical position to attempt to tell whether there is any- thing in any of the leases referred to in my direct examination which would prevent the state or the Canal Commissioners from using that feeder for the purposes of a canal or for the original purpose for which it was constructed. I can see this prop- 496 osition that if the relative level of the water in that work pro- posed here were maintained within a reasonable height of the top of the canal bank it would be very easy to plac'e a lock therein, and lock the water through as it was originally conveyed. Whether the plans were such that that is feasible of course I am not prepared to say. 497 The 16-acre tract that I have mentioned is the tract of land that was finally conveyed by the Canal Commissioners to Gris- wold by deed of January 6, 1905. My understanding was that the physical conditions along the 16-acre tract were such that it was not feasible either to attach a dam or construct a dam at that point or any point along there. The old piers on the Kankakee feeder were still in the river the last time I was there. I think they were constructed of stone. If I recollect rightly, there are three piers in the river; from the distance where I was I should think they are twelve to six- 498 teen feet apart. I am only giving my recollection on the bank. I don’t know how high the piers were originally above water at the ordinary stage nor do I know when they were built the first time. At the time these leases to Griswold, this flowage contract and lease to Griswold, were made September 2, 1904, I would not be positive whether any question was raised by the Canal Commis- sioners as to the right of riparian owners of the land to build 499 a dam across the river or not. I don’t think the exact loca- tion of the dam was mentioned up to the actual execution of the leases. There was more discussion about wanting the lease for the purpose 'of the overflow than of anything else, except the one proposition of attaching the connection of the dam at some point, which I don’t think was very clearly designated until the actual lease was drawn. I think in the discussion of the question of whether the Canal Commissioners had any right in the river to convey the proposition of a riparian owner owning the bed of the river may have been discussed, but I am not positive there was any discussion in connection with any ownership so far as the Canal Commissioners were concerned. The question whether the riparian owners had the right to build the dam across the river, provided, of course, that they overflowed only their own lands 500 or the lands which they controlled, may have been discussed incidentally, but I don’t think that that was a matter that was open for us to consider particularly, and I don’t believe it was discussed with the idea that it changed the situation so far as that was concerned. Speaking of that part of the towpath bank from the proposed location of the dam up to the 16-acre tract, which is an artiflcial bank, I would say that the work that would be done there would be of considerable benefit in strengthening the towpath. I might state merely this, that in all portions of the canal where we have an artificial bank such as existed there, the liability of its going out is always present. The crawfish and sometimes muskrats burrow through the bank, and if that is not protected in its first stages it is very apt to carry out that section of the bank. It is 500 always an expensive proposition to restore the bank. I think A 1 it was considered at the time the flowage contract was made that the work would be of benefit to the use and operation of the canal by relieving the strain to that bank, and as to whether it was also considered that this work would relieve the state of the expense of keeping up two or three miles of towpath, I would not say as to that precise distance ; that we understood that from whatever length it did apply it would be a relief of care and main- tenance. I believe the contract provides that Griswold should main- 250 tain the towpath to file extent that the towpath was raised by the work. I do not understand that these contracts interfere in any way with the operation of the canal. 500 Re-direct Examination. A 2 My home is in Morris, Illinois. I have lived there about seventeen years. I am publishing at this time a newspaper called the Morris Herald. I have been doing so continuously throughout these seventeen years; that is my regular profession or business. Re-cross Examination. 500 I never heard of the State of Illinois undertaking to de- A 3 velop a deep water way from the Desplaines River until Oc- tober, 1907. I never heard until the legislative action subse- quent to October, 1907, that the State of Illinois ever claimed the ownership of the bed of the Desplaines River in Section 25, where the dam is being built, or claimed that it had the right to go into the water power business there. It was stipulated and agreed that the signature and subscribing oath of this witness taken under this notice be waived. 500 John M. Snyder, A 4 a witness for complainant, testified as follows : Direct Exa mination . My name is John M. Snyder. My age is sixty-five years. I am a Collector and Acting Secretary of the Board of Commis- sioners of the Illinois & Michigan Canal. My home is in Canton, Ills. Recently I have been connected with the Illinois & Michigan Canal about five years. I was connected with it some years ago at Cop- peras Creek. I was in the employ of. the Canal Commission- 500 ers between five and six years commencing about 1887. After A 5 that I was collector at Chicago for about a year. In July, 1903, I went to the canal at Lockport and assumed duties there as Collector and Acting. Secretary, and have been continuously in the employ of the Canal Commissioners up to the present time. The duties of the collector are to collect the tolls, and as assistant sec- retary his duties are to have charge of the records in the office. to keep a record of the meeting of the Commissioners and other clerical duties. I have been Acting Secretary of the Canal 500 Commissioners since 1903. The records are in my personal A 6 custoidy, and have been since July, 1903. During my term as as- sistant secretary, Mr. W. D. Newton was the actual secretary; after his retirement from the board about a year ago iMr. Chas. Deere was appointed and was elected Secretary; since he died, Mr. Sackett has been acting secretary pro tern, the Commission not having a third member. The writing of the records and the keeping of the volume has been deputed to me by all of these gentlemen in turn since 1903. I have done the actual work, gener- ally. I attend the meeting of the Commissioners when they are held at Lockport, and take the minutes of the meeting as they 500 occur. I make notes of the proceedings and then write them A 7 in the records afterwards. There are meetings held at Chica- go or Springfield or elsewhere. T make it a practice to go around and attend the meetings at such points. I attend the regular meetings. They have quite a number of special meetings that I have not attended. The regular meetings occur at the general office at Lockport in MTll County. We sometimes have meetings at Springfield. If I am not present, the minutes will be prepared l)y some member of the board or Supt. McDonald. I identify the certificate and my signature as Acting Secre- tary to the documents marked ^‘Exhibits D, E. F. G, H & 500 I made that certificate on the 18th of December, 1907. A 8 That is the seal of the Canal Commissioners (document being- shown to witness). The certificate applies to all of the docu- ments embraced in my statement. Counsel for complainant offered in evidence Exhibits D. E. F, G, H & I of the bill. Trans., pp. 62 to 73 inc. Abst., pin 40 to 46, inc. I donT know when Mr. Chas. H. Deere died. I think the record would show. I don’t know whether it is written up or not. Mr. Chas. H. Deere of Moline was the last regularly elected 500 Secretary of the Canal Commissioners prior to December, A 9 1907. The system of the Canal Commissioners is to prepare vouchers and pay rolls for all expenditures during the previ- 252 Snyder, — Direct Exam. — Continued. ous montlis, made up by the Canal Commissioners and its offi- cers, and Mr. SacketCs duty as secretary pro tern has been io sign and approve those pay rolls and vouchers. He lives at Mor- ris. He did not stay at the general offices at Lockport. I make my business office there and have during all the years that I have spoken of, from 1903 to this time. I have had the actual custody of the documents and seal of the canal office during these years and to this time, December 18, 1907. The volume I have before me, which is labelled on the back ‘^Eecords and Proceedings, 500 Canal Commissioners, State of Illinois,’^ is ‘‘No. 6,’’ No. 6 AlO being on the flyleaf. The volume is records of the proceed- ings of the Board of Canal Commissioners of the State of Illinois from September 11, 1903, up to the present time. This is the original and official record. The larger portion of the min- utes which are recorded here, are in my own handwriting; some later were written by the clerk in the office. All prior to April, 1906, or 23rior to May, 1906, are in my handwriting. Pages 36, 37 and 38 of this record under the heading “Proceedings June 4’’ are in my own writing. Counsel for complainant then offered in evidence the extract from page 41 of this record, being the proceedings of August 4, 1904. The offer of the minutes of August 4th, is as follows : 500 “Proceedings August 4, 1904, Lockport, Illinois, August All 4th, 1904. The Board of Canal Commissioners met in regular session at 9 o’clock A. M. Present, Commissioners C. E. Snively, W. E. Newton and W. L. Sackett, Superintendent Mc- donald and Collector and Acting Secretary Snyder were also joresent. ***** The General Supenntendent reported that the land sale set for the second of August had been indefinitely postponed in accordance with instructions to that end received from Presi- dent Snively; circumstances having arisen which seemed to make such action necessary.” Exhibit D, a recommendation by the Canal Commissioners to the Governor, was communicated to the Governor in the form of a letter. The approval of the Governor, of which Exhibit E is a copy, received by the Commissioners and communicated by the 253 Governor, is in tlie form of a certificate by the Governor. The 500 original of that was received at the canal office and kept there A12 on file. This is a copy of it. The recommendation Exhibit D is a letter, of which an impression is taken and copied in the book. I keep and file them, sometimes a typewritten copy, or carbon copy, but the copies are all kept. I keep a file of such com- munications to the Governor and the original of his replies. These constitute my record of such communications. These exhibits, the certificates of which I have just identified, are copies of these files. 500 At the time I had no knowledge as to why the postponement A13 referred to in the minutes just read was made, but subse- quently I learned through Mr. Snively, I think, and ]Mr. John W. Arnold of Lockport that certain parties — Mr. Arnold and 500 other parties desired an opportunity to examine that property, Aldwith a view of making a bid to purchase the same, and this postponement was on account of the application of Mr. Arnold and other real estate people of Chicago. I never learned the names of the other people. Eeferring to Exhibit F, the advertisement there appended, ad- vertising that certain ‘^property wdll be sold to the highest and best bidder for cash, at the canal office in Lockport, County of AYill and State of Illinois, on the 2nd day of August, 1904, at 10 o’clock in the morning,’’ such sale never occurred. On the 2nd of August, 1904, at 10 o’clock in the morning, 1 did not go out and announce that the sale was indefinitely postponed, nor did anyone else that I 500 know of. I don’t think that anything whatever was done at A15 10 o’clock in the morning, 2nd of August, 1904, at the canal office, in respect to such a sale. Counsel for complainant then offered in evidence the whole of the minutes of the meeting of September 1st and 2nd, 1904, which is set forth on pages 42, 43, 44, 45, 46, 47, 48, 49, 50 and 51 of the record, embracing among other things the record of Exhibit A to the bill. Exhibit B to the bill, and Exhibit K to the bill. 254 Snyder, — Direct Exam. — Continued. ‘^Proceedings September 1 k 2, 1904. The Board of Canal Commissioners met in regular session at the Hotel Majestic at 8:00 o’clock a. m. Present: Commissioners C. E. Snively, lY. E. Xewton and IV. L. (Sackett, Superintendent McDonald, Attorney C. L. IValker and Collector and Acting Secretary Snyder were also present. President Snively in the chair. AY. E. Xewton, Secretary. • The minutes of the last meeting were read and approved. The payrolls and vouchers for the month of Auguist, 1904, were audited and ordered paid as follows : Payrolls 158264 Vouchers 167993 Total 326254 The Board then continued the regular session until the morn- ing of September 2, 1904. 500 Chicago, Ills., Sept. 2, 1904. .\16 Commissioners continued regular session of the Board all members being present. It was moved and unanimously carried that the property described as (newspaper clipping) Sale of Canal Lands. Ohice of the Illinois k Michigan Canal, Lockport, Illinois, June 15, 1904. Pursuant to the statute of the State of Illinois, the interest . of the State of Illinois in the following described parcels or tracts of land, will be sold at public auction to the highest and best bidder for cash at the canal office in Lockport, County of lYill and State of Illinois, on the second (2nd) day of August, 1904, at ten o’clock in the morning, in full conformity with ‘an act to amend section eight (8) of “an act to revise the law in relation to the Illinois and Michigan Canal and the improve- ment of the Illinois and Little AYabash Eivers”, approved iMarch 27, 1874, in force July 1, 1874, as amended by an act of June 19, 1891, in force July 1, 1891’, approved April 21, 1899. in force July 1, 1899 ; situated in the County of Will and State of Illinois, to-wit: A tract or parcel of land in Section thirty-one (31) Town- ship thirty-four (34) Xorth, of Eange nine (9) East of the Third (3rd) Principal Meridian, which lies north of the center 500 of the Des Plaines Eiver and south of the ninety foot reserve A17 line of the Illinois k Michigan Canal, in the County of AYill and State of Illinois. 255 The Canal Commissioners reserve tlie riglit to reject any and all bids. C. 11. Skively, President. AV. K. Xewtox, Secretarif. AY. L. Sackett, Treasurer. The Canal Commissioners of the State of Illinois. June 16-23 and 30, ’04. heretofore advertised for sale on the second day of August, 1904, be recalled from sale for the reason that it appears that the property can be more advantageously leased at a greater revenue than can at ])resent be realized from the sale. It was therefore moved and unanimously carried that lease be entered into with Harold F. Griswold, of Evanston, Illi- nois, of the above described ])i*operty for a period of twenty years, and for flowage and pole rights at a total rental for the period for the sum of $3,700.00 cash in hand, previous deposit of $350.00 as a guarantee bid on said property to be returned to said Griswald. Said leases are as follows: 500 (Here follow land lease. Complainant’s p]xhibit B, flowage A18 lease. Complainant’s Exhibit A, and pole line lease. Complain- ant’s Exhibit K.) The following resolution was i)resented and unanimously adopted. Eesolved, that we deem it wise and expedient that the case of the Canal Commissioners and others vs. The Pittsburg, Ft. AYayne and Chicago Eailway Company et al., brought in the Circuit Court of the -United States in Cook County, Illi- nois, by E. H. Ylorris and other attorneys. General Number 27251, in Chancery, be dismissed as far as the Canal Com- missioners are concerned, and Ylr. Morris or any other at- torney who claims to represent said Commissioners in said suit is hereby requested to dismiss said suit as to said Canal Commissioners without delay, and the Secretary of this Board is hereby instructed to notify Mr. Alorris of the adoption of this resolution. • There being no further business the Board adjourned to meet at the call of the President.” 500 That meeting was held in Chicago at the Hotel Alajestic at A19 8 o’clock in the morning. Ylr. Harold Griswold was not there. I think Ylr. Ylunroe was present. I was there at that meeting. I have seen Air. Harold F. Griswold. The first time I saw 500 him was over at the legislative committee of the Illinois & A20AIichigan Canal in December, 1907, at the Great Northern Hotel. He was summoned before the legislative committee and 256 Snyder, — Direct Exam. — Continued. testified. Mr. Harold F. Griswold never appeared at any of tlie meetings of the Commissioners when I was present. Counsel for complainant then offered in evidence the minutes of the proceedings of October 31, 1904, as follows ‘^Proceedings October 31, 1904. Majestic Hotel, Chicago, Illinois, October 31st, 1904. The Board of Canal Commissioners met in regular session at 10 o’clock A. M. Present: Commissioners C. E. Snively, W. R. Newton and L. Sackett, Attorney AAalker, General Superintendent Mc- Donald and Collector and Acting Secretary Snyder were also present. President Snively in the chair, ~W. R. Newton, Secretary. * # * * * Upon petition of Mr. Charles A. Munroe, who guaranteed the expense of advertising, etc., the Commissioners by unani- mous consent decided to advertise, after securing the consent and approval of the Governor, for sale the following 500 described lands as follows: That part of Section thirty-one, A 21 Township thirty-four North, Range nine East of the Third P. M., Will County, Illinois, lying southwest and southeast of the Illinois & Michigan Canal and northeast and northwest of the Desplaines River (excepting and reserving the ninety foot strip of the Illinois & Michigan Canal) subject to the right of fiowage and lease of Harold Griswold.” Counsel for complainant offered in evidence the minutes of pages 59, 60 and 61, meeting of January 5, 1905, the following: “Proceedings January 5, 1905. Lockport, Illinois, January 5, 1905. The Board of Canal Commissioners met in regular session at 2 :00 o ’clock p. m. Present: Commissioners AY. L. Sackett and AA^. R. Newton, General Superintendent McDonald, Attorney C. L. AATilker and Acting Secretary and Collector John AI. Snyder were also jiresent. In the absence of Commissioner C. E. Snively, President, owing to serious illness. Commissioner Sackett was elected President pro tern. W. R. Newton, Secretary. ^{: * * * * * The following resolution was adopted. Resolved, that the ])roposcd lease ot* tliat ])Oition of lUe Kankakee feeder la Sedion 9-33-9 to Charles A. Alunroe for 20 years at $75.00 per year be approved, and the President and Secretary instructed to exe- 500 cute such lease. ^‘The following resolution was adopted: Kesolved that the sale of the following land to- wit (news- paper clipping) : That part of Section thirty-one (31), Township thirty-four (34) North, Eange nine (9) East of the Third (3rd) P. M., Will County, Illinois, lying southwest and southeast of the Illinois and Michigan Canal and northeast and northwest of the Desplaines Biver (excepting and reserving the ninety-foot strip of the Illinois & Michigan Canal, On December 6th, 1904, to Harold F. Griswold for $500.00 be and the same is hereby approved, and the President or President pro tern, and Secretary be duly instructed to execute deed therefor subject to the Griswold contract and lease, the $500.00 having been paid. The following is the approval of Governor and the advertise- ment authorizing said sale. Office of the Caxal Commissioneks, Lockport, Ills., November I, 1904. To the Honorable Richard Yates, Governor of the State of Illinois, Springfield, Illinois. Dear Sir : — The undersigned Canal Commissioners recommend that the 500 interest of the State of Illinois in and to the parcel or tract of A 23 land hereinafter specifically described, being part of the Canal lands of the State of Illinois other than those connected with water power upon said Canal and the ninety foot strip along the canal: That part of Section thirty-one (31), Township thirty-four (34) North, Eange nine (9) East of the Third (3rd) P. M., Will County, Illinois, lying southwest and southeast of the Illinois & Michigan Canal and northeast and northwest of the Desplaines Elver (excepting and reserving the ninety foot strip of the Illinois and Michigan Canal) subject to the right of flowage and lease of Harold F. Griswold, Should be sold, and in our judgment the interests of the State will be promoted thereby; and The Canal Commissioners request the approval of your Ex- cellency to the sale thereof at public auction to the highest - and best bidder for cash at the Canal Office in Lockport, Illi- nois, on the 6th day of December, 1904, at ten o’clock in the morning, thirty (30) days previous notice of said sale being first given in some newspaper published in the County of Will where such parcel or tract of land is situated. C. E. Snively, President. W. E. Newton, Secretary. W. L. Sackett, Treasurer. The Canal Commission of the State of Illinois. 258 Snyder, — Direct Exam. — Continued. 500 “I hereby api^rove of the sale of the parcel or tract of land A2-1- described in the foregoing report of The Canal Commissioners at public auction to the highest and best bidder for cash at the Canal Office at Lockport, Coimty of Will and State of Illinois, on the 6th day of December 1904, at ten o ’clock in the morning, thirty (30) days previous notice of said sale being first given by the Canal Commissioners in some newspaper published in the County of Will where such parcel or tract of land is sit- uated. pone at Springfield this 2nd day of Xovember, 1904. (Signed) Eichaed Yates, Governor of the State of Illinois. The following is a copy of the advertisement (newspaper clipping) : Office of the Illinois & Michigan Canal Lockport, Ills., Xovember 3rd, 1904. ' Pursuant to the statute of the State of Illinois, the interest of the State of Illinois in the following described parcel or tract of land will be sold at a public auction to the highest and best bidder for cash at the Canal Office in Lockport, County of Will and State of Illinois, on the 6th day of De- cember, at ten o’clock in the morning, in full conformity with ‘an act to amend Section eight (8) of “an act to revise the 500 law in relation to the Illinois & Michigan Canal and for im- A25provement of the Illinois and Little Wabash Rivers, approved March 27, 1874, in force July 1, 1874, as amended by an act of June 19, 1891, .in force July 1, 189p” approved April 21, 1899, in force July 1, 1899; Situated in the County of MTll and State of Illinois, to-wit: That part of Section Thirty-one (31), Township thirty-four (34) Xorth, Range Xine (9) East of the Third (3rd) P. M. Will County, Illinois, lying south- west and southeast of the Illinois and Michigan Canal and northeast and northwest of the Des Plaines River (excepting and reserving the ninety-foot strip of the Illinois & Michi- gan Canal) subject to the right of flowage and lease of Har- old F. Griswold. The Canal Commissioners reserve the right to reject any and all bids. * C. E. Sxively, President. W. R. Xewtox, Secretary. W. L. Sackett, Treasurer. Xov. 3-10- ’04.” 500 It is stipulated and agreed by counsel for both parties that A26 here follow in the record the recommendation by the Com- missioners to the Governor under date of Xovember 1st, 1904, which is Exhibit G to the bill, the approval of the Governor there- to, which is Exhibit H to the bill, the advertisement which is set out in the bill as Exhibit I and copied in the certificate of publica- tion, Exhibit I, and that the same need not be repeated here. As to the provision in the minutes of January, 1905, which directs that a lease to Charles A. Munroe for twenty years, of that portion of the Kankakee feeder in Section 9, 33, 9, be exe- cuted, I have a copy of that lease. The document which is now shown me was prepared by me and is a copy of that lease. Counsel for complainant offered this document in evidence, and it was marked for identification, Complainant’s Exhibit 1. 500 I conducted a sale at the Canal office in Lockport on the A27 1st day of December, 1904, at 10 o’clock in the morning. To the best of my recollection, Mr. Munroe, a gentleman that I did not recognize, and Mr. Kehoe possibly, and the employees of the office were present. I offered it for sale and struck it off and declared it sold. Mr. Snively, the President of the Board, was not there, nor was Mr. Newton, nor Mr. Sackett. No member of the Canal Commission was present. I don’t think Mr. Walker, the attorney for the Board, was there. I don’t think anyone 500 except Mr. Munroe bid. I was instructed I think, in the ab- A28 sence of the Commissioners or the attorney, by the Superin- tendent, to conduct the sale, and did so in pursuance of those instructions. My recollection is that it was a general understand- ing that Mr. Walker should come down and conduct the sale, but at the last moment he could not be present. I think Superin- tendent McDonald was compelled to be in Chicago on that day, is my recollection of it. I don’t Imow whether he was up the day before or that morning early. He called up Mr. Walker and com- municated with him by ’phone. I think Mr. McDonald called Mr. Walker up ; I am not positive about that. He called him up on the long distance ’phone to Eock Island. I don’t remember that any particular statement was made, only regrets that Mr. Walker could not be present to conduct the sale on account of 500 himself being compelled to be away, something of that kind. A29 My own instructions were received from Mr. McDonald ; I was instructed to conduct the sale by Mr. McDonald. After I had assumed to conduct the sale pursuant to those instructions 260 Snyde r, — Di rect Exam . — C o ntinued. from Supt. McDonald, a deed was made by the Commissioners to somebody. Mr. Mnnroe was i^resent at that sale and he made the bid; I think he bid in the name of Mr. Griswold. It was made, executed and delivered. a short time after. The deed re- ferred to in the minutes on page 60 was in fact made. This 500 document. Exhibit J, is a copy of that deed. A duplicate of A30 it was made and kept on file in the office of the Canal Com- missioners. A copy was made by a stenographer. I know personally it is a correct copy. I compared it personally. Referring to the min- utes of September, 1904, where the land lease, the flowage lease and the pole line lease are recorded in the minutes and direction made that such contracts be entered into, contracts were in fact made, executed and delivered as there directed. Duplicates of them were kept on file in my office, the office of the Commissioners. This document marked ‘‘Flowage Rights” is a correct copy of the flowage contract there authorized. Counsel for Complainant then offered said document in evi- dence. Transcript page 74, abstract page 46. A document marked “Griswold Land Lease, ex. B. Rec. 500 p. 43,” is a copy of the land lease that was so entered A31 into. (Trans., p. 51; Abst., p. 34.) Counsel for Complainant then offered said document in evidence. The document marked Exhibit K, a certified copy of the pole line lease, September 2, 1904, is a copy of the pole line lease that was then made in pursuance of that meeting. Counsel for complainant then offered said document in evi- dence. Transcript page 76, abstract page 47. The signature to the certificate at the end of said document marked for identfication Complainant’s Exhibit 2, is my handwrit- ing. This document is a certified copy of a memorandum agreement between the Canal Commissioners and the Economy Light & Power Company, dated December 5, 1901, relative to a line of poles, and authority to maintain a line of poles along the tow- path bank of the Illinois & Michigan Canal, between the Economy 2f)l Light & Power Co.’s plant in Joliet, and Ashland avenue in 500 the City of Chicago, Cook County. We have the original A32 contract at our office, and this which I have produced and is marked Exhibit 2, is a copy of the original. I think that line of poles is in existence under the conditions of the contract. Counsel for complainant offered in evidence contract as Ex- hibit 2. I was personally present at those meetings in August and Sep- tember, 1904, when Mr. Munroe came in and asked for this gen- eral flowage contract. I don’t remember of the Commissioner telling him that the}^ did not have any right to confer on 500 him the power or right to maintain a dam in the Desplaines ASS River. The only recollection I have, I think Attorney Walker suggested that if we did not have any power, there was no harm to sign the lease, something to that effect, but I did not hear the conversation, I think. I appeared at the legislative committee investigation at the Great Northern Hotel in December, 1905, and testified. I don’t think I was present at the May meetings in 1904, when Mr. Munroe came in and dis- cussed the subject of the flowage contract. I was present at some of the meetings when this subject was discussed. I was present at a meeting of June 29, 1904, at the meeting of August 4, 500 1904, at the meeting of September 1st and 2nd, 1904. At the AS4 legislative investigation of December 19, 1907, I testified as follows : heard part of the discussion. I will not be sure that I heard all of it. I don’t remember Mr. Munroe saying that he wished to obtain a permit to dam the Desplaines. I re- member the commissioners telling him they had no right to give him such a permit, I remember that. I think that was 500 at the meeting when he presented his application that was AS5 finally granted. I think Mr. Snively told him that the com- missioners had not any rights to confer any power to dam the Desplaines, and my recollection is that Mr. Snively and Mr. Sackett both objected to the conditions in that contract. My recollection of it is that Attorney Walker suggested that if those conditions were not good, that they would not harm the state by signing those leases; I did not pay particular attention to the discussion at that time, but that is my recol- lection of it.” My recollection now agrees with my recollection then. The 262 Snyder y — Direct Exa m. — Continued. vacancy caused by the death of Mr. C. H. Deere has never been filled. The Board at this time consists of Mr. Clarence E. Snively and Win. L. Sackett. The minutes are not entered up, and after the following meeting they are supposed to be approved by 500 the commissioners. I first prepare them in manuscript. I A36 don’t every time read at one meeting of the board, this manu- script of the minutes of the preceding meeting. The custom is to read them. If no objection is made, the minutes are con- sidered approved. I then proceed to keep them in the record. That was the case in regard to these minufes of June, August, September, October and December of 1904. If there had been any reason assigned other or more specific than that which is set out in the minutes of the meeting, for the postponement of this sale I w^ould have set that out. What I have set out covers what was announced and assigned as the ground of postponement. Mr. Munroe was present at the meeting of September 1st and 2nd, 1904, when these three contracts were voted. I think he was present on both days. I was present at the meeting of April 500 5, 1905. That meeting was held at the Leland Hotel in A37 Springfield. These minutes were kept by me. Counsel for complainant thereupon offered in evidence from the minutes of that meeting, the following portions : ^‘Leland Hotel, Spriitgfield, Ills., April 5, 1905. The Board of Canal Commissioners met at the Leland Hotel at 10 o’clock a. m. Present: Commissioners Snively, Hewton and Sackett. At- torney Walker, General Supt. McDonald and Collector & Acting Secretary John M. Snyder were also present. ^ ^ ^ ^ ^ ^ Mr. Charles A. Munroe was present, and submitted propo- sition for additional lease of water power on the Desplaines Biver. After discussion the matter was referred to General Supt. McDonald and Attorney Walker for investigation and legal opinion.” ****** 500 I think the minutes just read referred to the Kankakee A38 feeder lease. I am not familiar enough with the circum- stances to recall it. The minutes of the special meeting of April 12, 1905, appearing on page 69 of the record, are in my handwriting. I was present at that meeting. These minutes re- fer to the occurrences on that date. Counsel for complainant thereupon offered in evidence a por- tion of these minutes, as follows: ‘ ‘ Peoceedings Special Meeting, Apeil 12, 1905. Majestic Hotel, Chicago, April 12, 1905 The Board of Canal Commissioners met at special session at 2 o’clock p. M. Present: Commissioners Snively, Newton and Sackett. There were also present General Supt. McDonald, Attorney Walker and Collector and Assistant Secretary Snyder. 500 Mr. Charles Munroe was present, and offered a proposi- A39 tion for Harold P. Griswold, for an additional lease in con- nection with the Kankakee feeder, after discussion the whole subject was again referred to Supt. McDonald and Attorney Walker for investigation and report.” ****** 500 The Charles Munroe referred to is the same Charles Mun- A40 roe who has frequently been referred to in these minutes. The minutes which appear on pages 74 and 75, setting forth the proceedings of the meeting of August 8, 1905, are in my hand- writing. I was present on that occasion. Counsel for complainant thereupon offered in evidence the fol- lowing portion of those minutes : ‘^Peoceedings, August, 1905. Lockpoet, Ills., August 8, 1905. The Board of Canal Commissioners met in regular session at 10 0 ’clock A. M. Present: Commissioners Snively, Newton and Sackett. Gen’l. Supt. McDonald, Attorney AValker and Collector & Acting Secretary Snyder were also present. ****** 500 The following resolution offered by Commissioner Sackett, A41 seconded by Commissioner Newton, was adopted. Besolved, that the lease to Harold F. Griswold of this date, to certain rights relating to the water in the Kankakee River and to the Kankakee feeder, the reconstruction of the dam across the Kankakee River in Section Nine (9) Township Thirty-three (33) North Range Nine (9) East of the Third (3rd) P. M., the repair of the bank of said feeder, and the placing* of gates thereoon, at a consideration of $150.00 per annum, for the term of twenty years, be approved, and the President and Secretary authorized to execute the same.” The lease to Griswold just referred to was in fact executed. 264 S n yd er, — Cross-Exa m in at ion. It is stipulated and agreed by counsel for both parties that the lease Exhibit C, a certified copy of which has already been- introduced in evidence, is the lease there referred to. Before I became one of the force of the Illinois Canal Com- missioners, I was in the lumber business for some years in Can- ton; after that I was connected with the state insurance depart- ment for some time under Governor Tanner, and a short time 500 under Governor Yates’ administration. I was one of the A42 U. S. volunteers during the war from ’61 to ’65. I was not trained as an engineer or as a navigator. My business was general mercantile business. C ross-Examination. It has not been the custom of the Canal Commissioners to sign the minutes. I don’t think they were ever signed since the Canal Commissioners took possession from the trustees. I am not positive about that, but it has not been the custom for years for officers to sign the minutes. It has been my custom to write the word ‘^president” and the word ‘‘secretary” at the end of each of the minutes, but when I learned the Commissioners were not accustomed to sign them, I followed the precedent. No 500 one was present to bid at the proposed sale of the so-called A43 16-acre tract, which was advertised for 10 o’clock a. m. on August 2, 1904. I think the proposition of Mr. Munroe men- tioned in the minutes of April 5, 1905, for additional lease of water- power on the Desplaines River, referred to his proposition for lease which was afterwards consummated under date of August 8, 1905. Then the statement in these minutes that it was a proposition for additional lease of water power, is not absolutely correct. I suppose the statement was made that they wanted additional privileges, in connection wfith Mr. Munroe ’s water power project down below there and they naturally assumed that it was for 500 water power. I have in the canal office in Lockport many A44 printed and written documents, relating to canal matters and relating to reports that were made to the trustees or Com- missioners having in charge the Illinois & Michigan Canal, and containing reports of surveyors and engineers, and reports made to the governor and legislature, etc.; I can u])on the hearing 2G5 of this case bring to court such of these printed documents and papers as may be requested to be brought as liaving a bearing on this litigation. 500 Leon McDonald^ a witness called on behalf of complainant, testified as fol- A45 lows : D i reef Exam i u at to a. My name is Leon McDonald. T live at Lockpoid, Ills. I have lived there, with a few years break at different times, all my life. I am superintendent of the Illinois & Michigan Canal. I have no other, what might be termed active business at present. I have other business interests there. I have been engaged in the newspaper business the greater portion of my life. I ceased to carry on a newspaper at the time of my appointment as gen- eral superintendent of the Illinois & Michigan ’Canal. That oc- curred in the month of February, 1897. I have been continuously canal superintendent from that time to this. Before that I was in the newspaper business for more than fifteen years. That 500 was the business I had taken up early in life and made my A46 calling. That occupied my time and attention up to the time I became a Canal Commissioner, and that has occupied my time and attention since then. I had no employment with the Canal Commissioners prior to becoming superintendent in 1897. I had never worked on any other canal before I went to work on this one, nor had I had any training in hydraulic engineering or navigation or canal construction or operation. I am thoroughly familiar with the Illinois Kiver at Dresden Heights in Grundy County around the confluence of the Kankakee and Desplaines Eivers. I have seen the premises referred to in Exhibit A, i. e., the mouth of the Desplaines Kiver, two or three times dur- 500 ing the last six months. I think I was last there in Novem- A47 her. At that time there was a force of men at work under the contractors of the Economy Light & Power Co., erect- ing cofferdams and other works on the Desplaines River. I know a man by the name of Haworth slightly. It was my under- standing that he was there as the contractor for the Economy Light & Power Co. in charge of that work. I cannot remember exactly when the work under the Haworth contract, or by any- 266 McDonald, — Direct Exam. — Continued. one else on behalf of the Economy Light & Power Co., began at this point for the erection of this dam, but I think that I was notified by the Economy Light & Power Co. that the^^ were ready to begin work, and consequently were ready for our representa- tive or inspector, my recollection is, about the 15th of August. I believe this notice was in writing. To the best of my recollec- tion it was addressed to me as superintendent. I have not that notice with me. I think I can find it ; it should be in my files. 500 I will produce it and bring it if you wish. When I received A48 the notice I sent William Kehoe down there. He is now dead. He died January 1, 1908. The work down there had stopped just about that time. There had been some high water there that interfered, before December 3, 1907, so that there had not been much work done for some time previous to that. I have not appointed any inspector since the death of Mr. Kehoe, and have not myself been down there since that day. I am not fa- miliar with the plans of the Economy Light & Power Co. Mr. Kehoe had been at work on the canal under me all the time that I was there. He was already in the employ of the Canal 500 Commissioners when I became superintendent. When I be- A49 came superintendent he became subject to my orders and re- mained so up to the day of his death. As to the proposed deepening of the Illinois Diver, which is said to be in Section 25, Townshi|) 36, Kange 8, East of the Third P. M. and which will be, at least the east end of it, would be in Grrundy County and then run westward, is a matter that would not be under my jurisdiction as superintendent of the Canal Commissioners. I think I have before stated I don’t pretend to be an expert at riparian rights. I believe the state has some riparian rights there ; whether it would affect the deepening or not, I v ould not want to say positively; I don’t know. I have never exercised any jurisdiction over the Illinois Eiver, as such, in reference to the deepening or shallowing of it at that point or anywhere in that vicinity. But farther down south there are the two river locks, and we have jurisdiction over a thousand feet above and below, and during the first year of my superintendency, we 500 removed some bars from the Illinois Kiver in the vicinity of A50 Peoria. The relations of the canal and the river are such that I have jurisdiction over certain limited portions of the 267 Illinois Eiver: We have jurisdiction of the Illinois Eiver under a provision of the Act of 1874, as amended by the Act of 1891, in reference to the Illinois & Michigan Canal. The Canal Commissioners acted under a judicial resolution of the Gen- 500 eral Assembly. They had done work at other points on the A51 Illinois Eiver, and at one time, following the precedent, they undertook to keep the channel of the Illinois Eiver free of sand bars at different points, hut subsequently abandoned that, being informed that they had no })ower. The clause in the Act of 1874 was further amended in the Act of , and was further amended by the Act of , which was passed while I was in office. My jurisdiction of the Illinois Eiver has all risen from some special legislative act or resolution, of the kind to which I have referred. The Desplaines Eiver empties into the channel constructed for canal purposes in the north part of the City of Joliet. That channel formerly, or at the time it was constructed, terminated at Jetferson street in the City of Joliet. 500 Throughout that extent of the river, the Canal Commis- A52 sioners have always believed that they exercised full author- ity, and they have always believed that they had valuable rights in the Desplaines Eiver at other points as riparian owners. There has also been some question, which I believe has never been adjudged, as to their ownership in certain canal sections ; that is, the odd sections north of the city of Joliet. These questions have been raised by canal officers, but never submitted to a court for ad- justment. These questions refer to the ownership of the bed of a river in those sections. I have endeavored to state the jurisdic- tion which the Commissioners and which I, as Superintendent for them, have had occasion to exercise and have exercised over the Desplaines Eiver in fact. But possibly I was not clear. I said north of the City of Joliet. I meant that by saying over the Des- plaines Eiver in the odd section, without reference to that par- ticular locality; that is, to go wherever the Desplaines Eiver ran through an odd section of land. At the place where they came together, there is the area that 500 is called the upper basin. We have maps I believe which A53 would show just the extent and location of the upper basin, in relation to the canal and river to each other at that point. 268 McDonald Direct Exam. — Continued. There have been no maps showing the present condition made by the canal authorities. I have used, and relied on, and accepted as correct, the maps made by the Sanitary District of Chicago, showing its present condition. I donT know at what time the maps of the Canal Commissioners were made, but we have what we call plat books, which take up every section of the land the full length of the canal, giving a page to each section, and giving a pretty good idea of the topography in the section as related to the canal. That shows the upper basin as it was at the time of the making of the map. I have never been able to find any date 500 in these plat books that would be reliable. This plat book is A54 kept in our vault. We have no draughtsmen in our employ, but it would not be a difficult matter for a man to come to our office and make a copy of a page of the plat book, showing the lo- cality in Sections 25 and 36, Township 31 North, Range 8 East, of the Third P. M. in Grundy County, which is the site of that dam. That book is kept at Lockport and is in the physical cus- tody of Colonel Snyder, as acting secretary of the Board. He has the actual custody of all the records, files, maps, plats, seals and office archives of the Board of Canal Commissioners. The Board at this time has no secretary, but a secretary pro tern. The secre- tary pro tern signs the vouchers for the state ; the chief clerk 500 makes them out. I should say that the channel in the vicinity A55 of the upper basin was the result of the carrying out of the plans of the Sanitary District of Chicago, to get rid of the water that they had brought from the city, as modified by the decree, of the Will County court, of 1898. After the decree was entered in the year 1898, the Sanitary District went ahead ana made the changes in their plans to conform to that decree. There are one or two questions that we still believe they are somewhat delinquent in. Substantially and broadly speaking, the requirements of the matter were meant to be carried out by the Sanitary Dis- trict during the year or so or years following, and the pres- 500 ent physical condition was established at that time. A 56 This Dam No. 1 that has been frequently referred to, is the dam which in a way creates the upper basin. When I first undertook the duties of canal superintendent, it was pretty generally understood among the employees of the 2G9 canal, wlio liad been there longer than myself, or prior to my com- ing, that the state owned, in connection with the canal, a strip 90 feet in width on each side thereof throughout its whole length. We were bothered by people living in the vicinity of the canal and perhaps owning property, undertaking to extend their fences or boundary lines, so as to include portions of this 90-foot strip, and the etfort was finally undertaken seriously to prevent such encroachment. A party living west of the City of Ottawa on sev- eral occasions had rebuilt the fence between his property and the canal property, and each time had built it a little closer to the canal, finally placing it about 17 feet from the canal. After con- sulting with the Commissioners and acting under their authority, I directed the foreman in charge of that section of the canal, to take a gang of men and tear the fence down. He did so and the other fellow built it up again as soon as our men were gone. This operation was repeated several times, and it was leading to 500 bad blood and considerable hard feeling in that section, and A57 accomplished no good. For this reason it was finally deter- mined that the matter should be submitted to the court for de- cision, and it was so submitted. That case is what was known as the Ingersoll case, Werling v. Ingersoll, 181 U. S., p. 131. Sub- sequent to the decision of the court in this case, it has not been the policy of the canal authorities to undertake to enforce their jurisdiction in even sections generally. It has been my under- standing, however, of this decision, without ever having studied it carefully, that the question of ownership under it, was largely to be decided by local conditions. That is, the state took title in the even sections, the same as a private individual would take title, and what they had used for actual canal purposes, had oc- cupied, either in process of construction or in the operation of the canal, without conflicting with anyone for a period of more than twenty years they had title to. The place wdiere the Des- plaines Eiver and the Illinois & Michigan Canal are coincident with each other, is distant many miles from the site of that dam at Dresden Heights. 500 I know Mr. Charles A. Munroe and Mr. Eobert Gaylord. I A 59 first knew Mr. Gaylord as a boy. After he had arrived at the age of seven or nine years he moved from the town where 270 McDonald, — Direct Exam. — Continued. I lived, and I did not see liim then for quite a number of years. Then the first time I saw him, the first time I recollect of having seen him after he left, with possibly one exception on the streets of Chicago, was when he came to my office at Lockport, I should say somewhere in the early part of 1902. I wouldn’t he positive whether the first time I saw him he was alone or whether some- body was with him. I saw him two or three times about that time. On one of those occasions when he came to the office in Lockport in 1902, he had someone with him. He was accompanied on 500 one of those occasions by Mr. C. A. Munroe. To my knowl- A60 edge I had not met Mr. Munroe before that. My recollection is that Mr. Gaylord introduced Mr. Munroe to me. They were bringing some sort of a proposition to the Canal Commissioners at that lime, for obtaining the water power. The location at which they were then preparing to develop water power, was just south of the city limits of Joliet. The South Street proposition is used more particularly to imply the Sanitary District proposition they had there at one time. It is sometimes called the Hickory Creek power. The negotiations we began in the summer of 1905, at which Mr. Gaylord and Mr. Munroe were present, resulted in a tentative contract. The instrument now shown me, and which purports to be a contract dated the 31st of October, 1905, be- 500 tween the Canal Commissioners and Eobert Gaylord, is the A61 tentative conditional contract to which I have referred. The main contract is not here, but here is the contract which pro- vides that the other contract does not go into effect until com- pensation is paid. There was a certain other contract executed at the same time as this, which provided more in detail for the power. Said document was thereupon marked Exhibit 3 and offered in • evidence. I should judge that the document now shown me, marked Ex- hibit 4, and which purports to be a contract dated the 3rd day of October, 1902, between the Canal Commissioners and Eobert Gaylord, is a copy of the contract referred to in the conditional agreement complainant’s Exhibit 3. I have made no nersonal com- parison of either this or the other one, but judging from the fact 271 that it was certified by Mr. Snyder, and there are certain familiar terms in it and conditions, I judge it is the same. 500 Complainant then offered said document in evidence. A62 This contains the provision that the party of the second part, Caylord, covenants with the Commissioners, that he will not raise the water in the river or cause it to be raised, up to or on the Channahon level, until he has agreed with the party of the first part as to the amount of compensation, for the right to flow the water on the canal banks of the river, etc. That agreement upon the amount of compensation was never reached, still less 500 has it ever been paid. No development or work under these A63 contracts of October 3, 1905, has ever been done that has af- fected the Canal Commissioners. The subject of the amount of the compensation was discussed. The discussion did not reach an agreement. As to when I first heard from Mr. Munroe in refer- ence to the subject of flowing, leasing or acquiring the 16-acre tract, down near the mouth of the Desplaines Eiver, by means of the dam crossing the Desplaines at its mouth. I would not like to try to fix the date any nearer than to say that to the best of my recollection, it was in the spring of 1904. I don’t recollect where that came up. I presume that Mr. Munroe came to see 500 me at the canal office and it was talked over there, but I would A64not say positively. I don’t think I met him any time except in the canal office the first few times we met. In the spring of 1904 Mr. Munroe came to the canal office with the tentative propo- sition concerning the flowing of the 16-acre tract, and the possible leasing or buying of a 16-acre tract, by means of a dam at the mouth of the Desplaines, and there was a verbal discussion of the outlook. As. a result of those discussions, I went with Mr. Mun- roe to examine the property known as the 16-acre tract, and situ- ated at the mouth of the Desplaines Eiver. I examined with 500 Mr. Munroe all the property lying adjacent to the canal, in- A65 volved in the contract under discussion, except the feeder. To the best of my recollection, that was some time in June, 1904. Mr. Munroe and I got a buggy and drove down there and drove around over and got out, and walked around the 16-acre tract, and walked up and down the banks of the river and looked the 272 McDonald, — Direct Exam. — Continued. 500 ground over and got into the buggy and came back again. I A66 took perhaps two hours or such a matter to drive down the and the same to drive back. I was fairly famiilar with the locality before we went down. It took the whole of the day that I was at work on that matter. I cannot say as to our conversa- tion on that trip, except that in all likelihood I was discussing the project of Mr. Munroe or he with me, outlining in a general way what it was proposed to do. That is my best recollection of a gen- eral conversation, substantially the conversation as it dealt with this project in whatever phase it came up as we went along over the ground. We had discussed the element of the proposal, where lie was proposing to put a dam on the Desplaines Eiver at the mouth, and I presume we discussed it on this occasion. We must have discussed the attaching of that dam to the canal bank, so as to use the canal bank as a retaining wall or wing dam of the pool to be formed, and overflow the 16-acre tract which lies from 500 one-third to one-half a mile or more up stream from that dam. A67 After this trip was made, Mr. Munroe came before the board with a proposition to acquire these rights, and attach the dam to the bank and overflow this land, and use the bank of the canal as a retaining wall or wing dam. Pardon me — I donT think he ever called that a wing dam. The phrase used I guess was the right to flow or back water up against the canal bank, but I pre- sume it is correct to call it, using the canal bank as a retaining wall. I understood he was asking to obtain a contract with the Commissioners which would give him the right to do these things. In the course of the discussion, when he came forward in the Board meeting with the proposition to dam the Desplaines and to back the water up in tlie Desplaines Eiver, to attach the dam to the canal bank and flow the ninety-foot strip along the canal, and to flow the water up against the towpath bank of the canal, and 500 to overflow the 16 acres, it was mentioned by at least one and A 68 probably more than one of the Commissioners or their attor- ney, that the commissioners had no power to confer a right to do those things, but it was finally understood, as I recollect it, that the language to be inserted in the contract, was to be in the nature of a consent on the part of the state authorities, so far as any of the state rights in their charge might be affected by the proposed work. As I recollect it, Mr. Munroe said that if the Commissioners had nothing’ to give away, that tlie insertion of what he asked for in the contract would no! cost tliem anything, or something of that kind. I am not exactly clear as to that con- versation, hut something of that kind on his part went to sliow that there need be no hesitancy on their parf to insert such lan- guage in the contract. I discussed the matter with our attorney, and I will not be positive as to whether I discussed it directly with IMr Munroe or not. IMy impression is that Mr. AValker and 500 Mr. Munroe and myself talked it over together. I think after A 09 that matter had been discussed among ourselves and perhaps with Mr. Afunroe, it was left to the attorney to fix the language of the contract covering the ground as proposed. I testified before the legislative committee at the Great North- ern Hotel last November or December. I there testified — I felt as though I had told him that we had not the right and that that was not enough, and that as a matter of fact I perhaps exceeded my au- thority in doing that, but I remember doing it. Aly recollection now agrees with my recollection then on that. I think that is what I have just said right along that line. I 500 did not vary from that at all. I think the matter was gone over. A 70 I think the general subject of making the necessary contracts, leases, deeds, instruments and agreements in securing these rights, came up at every meeting of the Commissioners, and ques- tions were frequently referred to me for investigation, and to Air. Walker for consideration. At one of the first meetings at which it came up. Air. Newton and myself were instructed by the Board to do down and make a further examination and then come back and make a report ; we did that. My trip with Air. Newton was made by a carriage from Joliet in the same way as the trip with Air. Alunroe, and took substantially the same amount of time. I took him all over the ground that Mr. Alunroe had taken me over and pointed out all the different points to him as Air. Alunroe had pointed them out 500 to me and as I knew them myself. Our report was oral. The A71 substance of our report was to the effect that the ground had never been productive of any revenue whatsoever for the state, and that there seemed to be no immediate prospect of any productiveness on the part of it, outside of such a proposition as 274 M cBon a Id, — I)i red Exa m . — C o n tin tied. might be made by Mr. Munroe and going into the location and nature of the territory involved. And in that report I think in snbstance I recommended that the transaction be made. That is, conferring upon Mr. Munroe and his assigns what he was then seeking. I was down there over that work in November, 1907. A very considerable force of men were then at work putting in a cof- ferdam, substantially at the location indicated on the large blue print, by the red marking and legend ‘‘proposed power dam,’’ here labelled ‘ ‘ Sanitary District of Chicago, map showing parts of Sections 31 and 32, Township 34 N., R. 9 E., of the 3rd P. M., Will County, Ills.” 500 I have met Mr. Woerman, the engineer of the Economy A72 Light k Power Co., but I would not be positive I could recog- nize him if I saw him. I didn’t see him, to know him, to recog- nize him by name while I was down there in November. I did not learn from Mr. Heyworth how many men he had at work there at that time. I did not get a statement of his forces from him. I had occasion to ask Mr. Keough, our inspector, at a time prior to that. There had been some talk as to undue and unseemly haste being used in advancing the work down there, and I had heard it 500 stated at Springfield by members of the Legislature and others, A73 that they were using three shifts of men and using electric lights to work by, etc., and I was considerably surprised by such statements; so immediately upon my return home on seeing Mr. Keough, I asked him in regard to the matter. He said there were not any three shifts, there was only one shift at work, and I afterwards made inquiry as to the number of men on the pay roll, and he told me that the heaviest pay roll they had, as I recall it, up to that time, was 140, or thereabouts, men, and that the men were continuaully going and coming, that the number of those varied sometimes being more and sometimes less. I said that was prior to my visit in November, 1907. It might have been the same month, I could not say as to that^ it was just about the same time. No other member of the committee was with me on the occasion when Mr. Newton and I went. I think Mr. Newton was the only Commissioner I took down. There was water power being developed on the canal property under lease or contract or arrangement with the Canal Com- 500 missioners, at the time when the arrangements were going on A74 in the summer of 1904. Such generation or operation was going on at Lockport by Norton & Co., the water being drawn from the canal basin, a portion of the summit level of the Illinois & Michigan Canal, and being discharged into a race lying in the Des- plaines Eiver, at Jackson street in the City of Joliet by the Electric Light & Power Co., the water being impounded from what is known as the upper basin, arriving at that point from the Illinois & Michi- gan Canal and the Desplaines Eiver and the channel of the Sanitary District of Chicago, and being discharged into a tail race leading into the channel below the dam, and a small portion through a tun- nel leading into the Channahon level of the Illinois & Michigan Canal ; on the Channahon level near McDonough street in the City of Joliet where the Great Western, I think it is. Cereal Co., the water being drawn from that level through wheels established on the berm side of the canal, being discharged through a tunnel under the canal into the common channel of the Sanitary District of Chicago and the Desplaines Eiver. The Sanitary District 500 claims, I believe, that the Desplaines Eiver, about from the A 75 point of discharge by the Sanitary District of Chicago into the river and down throughout the course of the Desplaines Eiver, is a part of their channel there, and that claim is not conceded by everybody. At Ottawa, LaSalle County, by the Illinois Light & Traction Co., the water being drawn from the main channel and the Illinois & Michigan Canal, into what is known as the side cut canal, thence into what is known as the hydraulic basin, then through the wheel of the Traction Co., into a tail race leading into the Illinois Eiver. The mouth of the Kankakee feeder has been closed on what I consider good authority; in fact the man who said he closed up and was at that time on the canal, has fixed it as being closed on April 3rd, 1888. That man was Charles A. Dimick, and he is my assistant and still at work under me. When I first entered my 500 duties as superintendent, he was at work under me. He has A76not been an employee of the Board continuously, but on and otf during the entire time. The feeder, the mouth of the feeder, of course was at the junction of the feeder with the canal, and 276 McDonald, — Direct Exam. — Continued. it crossed the tow-path at that point, and it was bridged for the nse of teams ; the bridge was removed and the tow-path made con- tinuous by filling it up with dirt. That was done in 1888. 1 asked Mr. Dimick and he said there had been water in the feeder the previous year up to the close of navigation, but he was not prepared to say how much reliance they had been placing upon that for some time prior to that, as a feeder. I think perhaps — he is a man who keeps copious notes of his work and he might perhaps chase that subject down if it was material. I will ask him what time the feeder was abandoned, the nse of it was abandoned, for drawing water to the canal. 500 Q. Mr. McDonald, we asked if yon could bring the letter to A77 which yon refer, which yon received from theositively. But, 508 as I remember, in a general way the extreme height of the pool would not come up onto the a(|ueduct to a sufficient height to render this restoration impracticable so that with that in view the construction of the work would not interfere in any way with the future use by the state of the Kankakee feeder should it desire to use it, but it would require the construction of the old aqueduct across and into the canal. The expense of such ob- struction would be no more than would be the expense of recon- structing the feeder at the present time, with tlie exception pos- sibly of one point of pier construction. If it were necessary to re- build the piers, it would be more expense, of course, to put them in under water. It would be quite possible and practicable to use the feeder if the Canal Commissioners ever wushed to do it, notwithstanding the construction of the work contemplated by the proposed con- tracting, and the only question would be the question of ex- 509 pense of reconstruction. The only difference worth consider- ing I think would be the difference in the cost of the pier construction, pier and abutments. It would involve not a tre- mendous sum, the extra expense might be $7,000. Re-direct Examination. I am not able to give you in figures the height of the bottom of the aqueduct as it used to be as it crossed the Desplaines 510 River, which carried the feeder. I did not ever measure it. I have had these figures, Mr. Starr, in detail. I do not now carry them in my mind. I have figured from those figures in the relations of the extreme height of the water and the ordinary water in the pool, the water level in the canal, and by having a pretty clear idea of those things I am enabled to form a fairly good and general idea of the relation of the aqueduct to those levels. It has been several months since I have gone over the figures. As to the contracts with the railroad companies that had erected embankments, if my recollection serves me right they are in the nature of permits, which would be on file in the office, and I presume they are. If they are I can furnish them to you. 290 McDonald, — Be-direct Exam. — Continued. 511 Q. Will you have them looked up and bring them here? A. Mr. Snyder will be the proper one to bring them here, because of his being acting secretary. Thereupon it was agreed that Mr. McDonald send up by Mr. Snyder copies of the permits or contracts, with a notation of his own upon them identifying them with his testimony they will l)e received by both sides as a sufficient connection with his testi- mony of the documents referred to, subject to the objection of their competency, irrelevancy and materiality. 512 Thereupon it was agreed that under the same agreement the witness should furnish a copy of the contract referred to in his testimony as the contract between the Canal Commis- sioners and the Economy Light & Power Company, relative to the payment of compensation for the work erected by the Economy Light & Power Company and by the state, and the 513 witness agreed to furnish a copy of said contract. I siDoke of a mill being erected by the Economy Light & Power Company at Jackson street just otf of Dam No. 1. The power for that plant is obtained from Dam No. 1, or from 514 the pool just above Dam No. 1, which pool is also known as the upper basin. The channel of the Sanitary District of Chicago enters this upper basin a distance above Dam No. 1 of between one quarter and a half a mile. Between the point where the channel of the Sanitary District of Chicago first enters in or merges with the Desplaines Eiver and the mouth of tliG Desplaines Kiver there stands this Dam No. 1. I would not wish to be understood that I am attempting to fix the terminus of the chan- nel of the Sanitary District of Chicago. That is a question which is liable to raise a good deal of trouble in the future, so that it would be better to put it this way, between the point where the waters of the channel and those of the Desplaines River enter this basin and the mouth of the Desplaines River, there occurs this Dam No. 1. There is no other dam in the Desplaines 515 River between these points, to my knowledge. That was true on the 2nd day of September, 1904, that there was no dam between these points where those waters merge with the upper basin and the mouth of the Desplaines River. Dam No. 1 was the only dam there was l)etween Lockport and the mouth 291 of the Desplaines Eiver or ])etween the upper basin and the Des- plaines Eiver. I spoke of there having been definite action taken cancelling the contract with Gaylord. Such action was made by way of resolu- tion made of record in our office. Q. Can you send the copy of that resolution with suitable reference as to what page it appears at? A. Yes, sir. Re-cross Exam i n at ion. Q. Mr. McDonald, the construction of the work by the Economy Light & Power Company pursuant to the flowage contract would relieve the canal bank near the river from the dangerous grade which now exists there, would it not! 516 (Objected to on all the grounds heretofore stated, and fur- ther objected to on the ground not re-cross examination.) A. In my opinion it would. To that extent, that work would be a benefit to the canal. It is true that the construction of this work, or the carrying out of this flowage contract, would save considerable expense to the state in keeping up two or three miles of towpath. Q. How much of a saving would that he approximately? Counsel for Complainant. Q. Mr. Porter, is it understood that the objection was carried forward by stipulation to your re-cross as well as to your former examination? Counsel for Defendant. Yes, sir. A. Possibly save several hundred dollars per annum. I am familiar with the situation of the land owned by the state at that point. Q. What kind of land is this 16-acre tract? (Objected to as not re-cross.) A. Very poor land. Sometimes several times a year this land is overflowed. 517 The state does not derive any revenue from it and did not until this contract was made. Q. Do you consider that the amount of money paid for these flowage rights, and lease, and deeds, was adequate compensation for the rights secured at the time! Counsel foe Complainant. Objected to on all the grounds here- tofore mentioned and no qualifications. A. I certainly so consider it. The land was of no value worth mentioning for agricultural purposes. The land was not used in any way in connection with the operation of the canal or in connection with any water power on the canal. Thereupon it was stipulated that the signatures of Mr. Mc- Donald, Mr. Snyder and Mr. Sackett were waived. 518 Thereupon the further taking of said depositions was ad- journed to Thursday, April 9, 1908, at 2:30 o’clock p. m. J. H. Hillebrand, 520 a witness for complainant, testified as follows : Direct Examination. My name is J. H. Hillebrand. I am 52 years old. My resi- dence is Chicago; it has been my residence for about 32 years. I am chief draftsman for the Sanitary District of Chicago. I have been employed in the Sanitary District of Chicago’s offices in one way or another, for about 17^ years. Before I went with the Sanitary District of Chicago, I worked as civil engineer, railroad engineer and surveyor. I have been a surveyor and 521 civil engineer, I guess about 30 years. To state in a general way some of my duties as chief draftsman of the Sanitary Dis- trict, I would say that I take charge of all the surveys, plats and maps, the men employed platting the surveys, and I verify and examine and correct the plattings and mappings of the surveys. That work is all done under the supervision and direction of the chief draftsman. He is the man to whom the Sanitary District of Chicago looks for its correct maps, plats and profiles. I have field the position of chief draftsman for about 13 years. The map and profile which is before me, which the reporter has marked for identification Hillebrand ’s Exhibit 1, is a contour map from Chicago to Lake Joliet, giving the location of the main chan- nel of the Sanitary District or Sanitary Canal, the Desplaines River and the Illinois & Michigan Canal, and also a profile of the main channel, and a profile of the Desplaines River. Those lie respectively, in three bands extending lengthwise, crossing 522 the map. The strip marked on the upper portion of the map and extending almost all flie way across it in yellow, is the Illinois & Michigan Canal. This map and plat was made under my direction and supervision while in the employ of the Sani- tary District of Chicago. The sources from which the informa- tion is assembled, which is here portrayed, were from surveys of the Sanitary District. It shows the facts and matters with which it appears to deal, and which it appears to portray and represent, as correct as it can be done on a small scale. Another mark or strip extending along the greater portion of the upper basin, which is marked in red, represents the main chan- nel, of the Sanitary District of Chicago. Another band also extending across the main portion of the map on the upper part, which is colored green, represents the Des- plaines River, according to the original survey, existing before we built our river diversion. On the east end of it the part labelled in green ‘AVest fork of south branch,” and again south branch Chicago River,” is the Chicago River and its branches. 523 Between the parts about at that point where the words Ogden dam” occurs at one end and a considerable distance to the right from that, a narrow strip in green labelled Ogden ditch,” is a ditch that had been in existence for years, and which connects the overflow waters of the Desplaines River with the Chicago River. Along the map at intervals connecting parts of the green band labelled ^‘Desplaines River,” a strip put in in black, which is labelled in one place “river diversion,” is what we call the river diversion, where we had to divert the river from its original bed. By we, I mean the Sanitary District of Chicago. I mean the work done by the Sanitary District of Chicago, that diverted the course of the Desplaines River, and laid out a new channel for it. The Desplaines River now runs along that new channel partly and partly in the old channel. 524 When we built a new channel, the water filled the new channel entirely, and where we did not build a new channel, it filled the old channel, all of the water. 294 H illebra )i cl, — D i reef Exa m . — Con tin ued. The course of the old channel and the several river diversions taking the place of the old channel where they occur, connect to- gether and make a connected water course and stream from the’ one end of what is shown on the map to the other, and whenever a new channel has been created and is delineated on the map, the water of the Desplaines Eiver runs through the new channel. The various labels and legends and written matter set out upon the map correctly exiDlain the portions to which they are at- tached. 525 The statement made in the letter press or legend of the map is correct. This map is in general and constant use by the Sanitary District of Chicago in ascertaining distances and loca- tions of different parts of their work. 5Ve call it our index map. AVe have a vast number of smaller maps in greater detail of sep- arate parts of the work. This is the general index or key to our set of maps. This is what we call a blue line print. 5Ye had it done a couple of weeks ago. I had a negative and from the negative we had it made. The negative was taken may he about six or seven years ago, — I am not positive. It was done under my direction, — long before any matters now in controversy had arisen. 526 These hands in red, and yellow, and green, and black were originally in blue lines, hut they were recently colored in. The coloring itself, the red, the green, the black, and the yellow were printed in by men yesterday, and I put those on at the re- quest of counsel for complainant in order to bring out with greater distinctness the parts so colored. The work of making the new channel by the river diversion was the first work by the District, and some of it began in 1892 or 1893. I think it was started before Mr. Kandolph had charge, but he completed the work. Bennezette IVilliams was his predecessor as chief engineer. As to the contours shown on this blue line print and the 527 location of rivers, etc., the survey was commenced in 1890 and completed in 1895, and the location of the main chan- nel or river diversion was put in in 1898, or 1897. The blue line print, which has the large main label, reading ‘‘Sanitary District of Chicago Map and Profiles of Sanitary and Ship Canal of Chi- cago from Chicago to Joliet, Jan. 1898,” shows the conditions that existed in 1898, but they put in this continuation of the main channel from the controlling Avorks at or near Lockport after- wards, down to the upper basin of the Illinois and Michigan Canal, as shown in red. The u])per basin is shown on this map in yel- low, just above the word ” Joliet.” Between the ])oint just to 528 the north of Lockport, broadly colored in black, and the ])art showing the upper basin below the water power channel of the Sanitary District, has been put in since January, 1898, and is indicated in red. The channel for the waters from the Deep Pun, indicated in black, lying just below the red line of the Sanitary District channel, the black line beginning at the section line just to the left of the in Lockport, running down across Section 27 and into and half Avay across Section 3, is the channel of the Deep Run. The waters of the Deep Run are received by that ar- tificial channel and conveyed so that they are all gathered in the Sanitary District channel below the power house. Along the cen- tral portion of the exhibit runs another strip which has in the center of it and near the top of the center of it, the words, ”Main Channel” in large letters. That is a profile of the 529 main channel of the Sanitary District of Chicago showing the grade line and the original surface; the grade line is the bottom; the red line extending across from one to the other and labeled Bottom of Channel” represents the bottom of the chan- nel as it was actually constructed; and the various squares and delineations which appear aboA^e represent the surface of the ground and the distance; — the A^ertical distances, the eleA^ations above and below Chicago datum. The figures which appear at intervals on the horizontal line above the red bottom line, indicate distances above and below Chicago City datum, and that is represented by the line made up of dashes and dots extending across the map, labeled Chicago City Datum”; and the original, Chicago City Datum is low water mark of Lake Michigan in the year 1847 and is 579.63 feet above the mean tide at New York, according to U. S. lake 'survey, and 578.56 feet above mean tide of the Gulf of Mexico, Beloxi, Miss- 296 lUllehrand , — Direct Exam. — Contimied. issippi, according to the Miss. River Comm.,” was taken 530 from the official record of those bodies, respectively, and has been verified by me to he correct. This central hand across the exhibit, has a number of divisions ])y vertical lines, — one at the extreme right end being marked with a cipher, and then going along 100, 200, 300, 400, and 500, etc., at regular intervals out to 1,500, represents the distance from Chi- cago. 1,500 means 1,500,000 feet. The part of the legend on the left-hand of the general label, says ^^Map,” — that refers to the general map, constituting the band, and the exhibit which lies across the top of the exhibit, with the names and sections upon them. And next to that word the statement appears ^‘2 inches equals one mile.” That represents the scale to the user of that part of the map, constituting the upper third, or ‘‘Strip No. 1” of the exhibit. Counsel for Complainant. For distinction I mark here, as I speak, the right end of these three main channels: “Strip No. 531 1,” “Strip No. 2” and “Strip No. 3.” I said “1,500,000 feet; I meant instead 150,000 feet. Strike off the cipher. The words immediately below the label last read, “Contour intervals 5 ft.,” means the distance, or elevation between each contour is 5 feet. That refers to “Strip No. 1.” For instance this contour (indicating) is 40 feet above Chicago datum, indi- cated by “40.” (Witness makes the letter “A” at point indi- cated.) That is, in Section 25, containing the word “Terminal,” next to the Chicago Terminal Railroad, this contour is plus 45. I point to another line in Section 1, and passing over to Section 36, which I mark “B,” and I see that is marked “45.” The in- terval between these two is 5 feet, which means there is a slope be- tween these two lines of 5 feet. “40” means 40 feet above Chicago datum, and “45” 45 feet above Chicago datum. 532 Small figures and the same small size style of type, which are scattered about this map on “Strip No. 1” represent ele- vations above Chicago City datum; and the wandering lines upon which the small figures are marked represent a continuous line of countiw which is at that elevation; and when you see a line V marked 40 you can follow that line as far as it goes, and wher- ever it goes it represents that the country at that wandering line is 40 feet above Chicago datum. The map is divided into small squares in ‘‘Strip No. 1” the squares being 2 inches square, and those represent the Govern- ment sections. The Eange lines and Township lines are marked l)y the customary surveyor’s and map maker’s abbreviations. Turning to “Strip No. 2” on the right of the general label of the exhibit, the words “Profile sale Horizontal 1 inch equals 2,800 feet; vertical equals G feet.” That legend applied to “Strip No. 2,” and also to “Strip No. 3,” but not to “Strip No. 1.” 533 I adopted a scale so widely different, representing 2,800 feet horizontally by one inch; while vertically representing only 6 feet by an inch, in order to bring out the different elevations of the surfaces. To show the differences of elevation, we had to use a much smaller scale for the vertical than for the horizontal. If we used the same scale for the horizontal as for the vertical, the surface lines would practically be a straight line. These va- riations, which I seek to bring out l)y the profile, would be so in- significant as to disappear. These sharp points, which appear at intervals along the top of the yellow-brown portion of “Strip No. 2,” are highways, rail- ways and levees. As to the places marked “side track” under the word “main” in “Main Channel,” — the throwing up of a ballast road bed for the side track in this case gives an elevation which calls for such an expression. It must have been a spur to an ice house, or something. 534 These parallel horizontal lines running across “Strip No. 2,” which seem to be about one-sixth of an inch apart, would represent successively the height of one foot above the one below it. Across the top of this “Strip No. 2,” a row of letters and fig- ures at intervals, which look like letters printed on a little flag, with the initialed end. The extreme right-hand end is “0,” and a few inches to the left, over the “C., M. & N. K. E.” is “N. 0.”; and a little further to the left “M. N.,” and a little further 298 H illeh rand Direct Exam. — Continued. ‘‘L. M.,” etc. — representing the contract section. For instance the place where ''L. K.’’ appears, as a sort of double flag with a circle around it, is the ending of Section L, and the beginning of Section K. 535 That is, this work when let out by contract was divided up into numerous work sections, which were indicated by letters or by figures, and each one of those is here delineated, so that if you want to talk about something happening in Section L this would show you where that was at a glance. That has noth- ing to do with the dimensions. Eight under the point where 5 and 4 in those section numbers come together, I follow a line right down the top of strip num- l)er two to the bottom of strip number two at that point, ver- tically, and I see at the bottom of it there is an irregular jagged line with cross hatchets showing running along it, and there seems to 1)^^ a dividing line between some yellow-brown coloring on one side of it and some blue-gray coloring on the other side of it. That is the glacial drift excavation. The glacial drift excava- tion is represented in brown and the late excavation is represented in gray, then this cross hatch line here would represent the top of the rock. The line which lays along irregularly above the 530 yellow-brown and toward the left hand edge of strip number two above the gray which has a small fringe of yellow at the top of it would be the real surface of the ground. At places the words ^^The Desplaines Eiver, of course” over some blue appears then the yellow will come up above the line which seems to be the water elevation and then blue again. For instance, the elevation of this part of strip number two, which is colored in deep blue and has the words ^ Adesplaines Eiver” above it, is a point there where the main channel intersects the Desplaines Eiver, the original bed of the Desplaines Eiver. It is in Section b on strip number one. I make an x and at the point of that x which occurs in the Surveyor’s Section 27, the red line or band, which I have described as representing the Sani- tary District channel, lies exactly in the course of the Desplaines Eiver as delineated and painted in the' original, there being- green on both sides of the red for the Sanitary District channel. Going by the parallel lines which represent feet above datum. 299 the surface of the Despl nines River at that ])oint is repre- 537 seated as about seven and one-half feet above Chicago City datum. The water in the main channel is supposed to be often up to Chicago datum, which would be seven and one-half feet lower than the delineated surface of the Desplaines River at that point. The blue at the east end of stri]) number two represents water in Lake Michigan. The water in the Chicago River is just under tlie word ‘^Bridgeport,” and next to that to the left is a small pocket of blue labeled “Slip o})i)osite Leavitt street.” That blue represents the water in the slip. That is represented as being about one foot above Chicago datum. 538 Strip number three labeled “River diversion” is a ])rofile of the Desplaines River and river diversion from Summit to the Wire Mill’s Dam in Lockport is now called 16th street over here, and there in this strip number three is a pocket of blue la- beled “Desplaines River,” and then a bit of that yellow-brown projecting above the level of the pocket of blue. The yellow- brown represents the excavation, that it material to be excavated in the river diversion. The letters upon little flags or target on stri]) number one des- ignate the section numbers of the different contracting sections of the work as on strip number two. The vertical lines dividing strip number two and strip number three are intended to be continuations substantially of the same set of straight lines, 539 so that the portion between the straight line marked 700 and the straight line marked 800 would be the same as in strip number two and strip number one. The tabular statement of figures which appear in the left hand corner of the exhibit repre- sents the amount of earth and rock excavated and work under construction, and the legend below “Further work contemplated but not contracted for” speaks of about the date of January, 1898. I am not sure it does, it may be a little later than that. The table in the upper left hand corner gives the quantities and the table in the lower left hand corner gives the amount and value. I mean the amount in dollars and cents of contract cost. For instance, between the meridian marked 1,000 on strip number three and the meridian which is not marked, but which is 300 Hillehrand , — Direct Exam. — Continued. ten spaces to the left of the one marked 1,500 so as to become 1,600, the Desplaines Eiver, the level of which is represented as seven and one-half feet above datum, that 1,000 is repre- 540 sented at twenty feet below datum at 1,600, then in the dis- tance between the meridian 1,000 and the meridian 1,600 would he a fall of twenty-seven feet in the Desplaines Eiver. The sur- face of the water as shown here would he the actual surface at the time of the survey. While going from the extreme right hand end from strip num- ber three, which is about 350, to the meridian 1,000, which was the starting point before the Desplaines Eiver appears substan- tially level, then the twenty-seven and one-half feet would he the total fall of the river on the entire district represented by strip number three. The jagged mountain peeks showing up above the surface of Exhibit No. 3 are similar exaggerations in order to bring out the small deviations in the level of the surface by means of this large elongated and greatly magnified square, and on 541 the left hand lower end of the exhibit is a sort of continua- tion of strip number two. On strip number two the line which would receive the number 1,600 crosses through the word ‘‘Eiver” to the left hand of and below Lockport, apparently the water there is represented as being about thirty-two and one-half feet below city datum, while on strip number three if that meridian represents the same thing it is only represented as twenty Teet below datum. This is so because at the time there was a wire mills there, the river di- version shows the conditions with the wire mills in. There was a dam at Lockport and the long profile of strip number two shows the improved conditions of the river so that while it represents the same place it represents it at a different time. Strip num- ber two was not taken on the same line as strip number three. Strip number three was taken along the line of the main chan- nel. This road is not exactly opposite Wire Mill’s Eoad on strip number three. 542 There is no profile of the present condition. Strip num- ber two represents the Desplaines Eiver at meridian 1,600 as being thirty-three and one-half feet below datum and repre- sents the level of the water to be just west of meridian 1,800 801 where the word ‘‘Adams Dam’^ occurs to he 58.8 feet below datum. That would represent a fall between those two points of the difference of between 33-J and 58.8. That was the old con- dition when the Adams Dam was still in existence. The Adams Dam was taken out in about 1899 by the Sanitary District. I think Mr. E. L. Cooley has a profile showing the elevations of the river or the river up between Lockport and Lake Joliet as it now is. 543 Counsel for Complainant. Well, I will leave that part for the present and ask you if on coming again you can bring a profile which does show? A. Yes, sir. Thereupon counsel for complainant offered Hillebrand^s Ex- hibit No. 1. in evidence. (Atlas p. 3950; Trans., p. 6569; Abst., p. 1925.) (Objected to on the ground that it is irrelevant, incompetent and immaterial, and on the ground that it was made from a survey that has not been proved to be correct because no sufficient foundation has been made to establish the correctness of the land.) The Witness. When the surveys were made, which are here assembled, we had two surveyors in our surveying corps, one of the first was Ericson, the City Engineer, and Schrader, the West Park Engineer. They worked under the Chief Engineer’s di- rection. There was an Assistant Chief Engineer at that time, 544 I think T. T. Johnson was Assistant Chief Engineer, and each of these surveyors had a force of linemen and rodmen, extensionmen and observing men. Our surveying corps would constitute quite a large number of men and each and all of those men enter into surveys which are here assembled and platted. Their work was taken in the regular course of public business in the performance of duty, and their reports, and sometimes draw- ings, and their books were turned in to me, and this map consti- tutes an assembling exhibit of the information from all those sources of observation by all those men. The map is taken, re- lied on, and used by the Sanitary District of Chicago in and about its own business in connection with the work of the district. 302 545 Cross-Eammination. The green strip leading out of the Chicago Eiver at Bridge- port south towards the Stock Yards is the south fork of the south branch of the Chicago Kiver. , The black line starting otf at Ogden’s Dam and the Desplaines Eiver and running south to the end of contract Section 2 is the river diversion. It represents a channel that was constructed by the Sanitary District for the purpose of diverting into it the water of the Desplaines Eiver while they were building the main channel of the district. It was parallel to the main channel, and that river diversion ditch or strip took all the water from the Desplaines Eiver and it has ever since flowed there. The rea- son it was done was because the main channel was running partly through the old bed, the natural bed of the stream, and they could not build the main channel through the natural bed of the 546 stream without taking the water out of it. The distance between Ogden’s Dam, the head of that river diversion, and contract Section 2 is approximately seven miles. The river diver- sion channel runs down to a point just above Eomeo almost contin- uously with a few slight breaks where the water is allowed to pass into the natural bed of the river and the distance of the whole length of that river diversion strip from Ogden’s Dam to Eomeo is about eighteen miles. The west end of profile strip number two shows a certain fall in the Desplaines Eiver from the dam at Lockport to what was known as the Adams Dam in Joliet, and that profile shows the condition of the Desplaines Eiver as it existed before the work was done on the Sanitary District channel. The dam at Lockport is not shown on this profile. The point from which I started the fall of the river is about opposite here, 33, and the Adams Dam was about 58, that is, there was a fall of about 25.8 feet in 547 the river from a point in I.ockport to the point where the Adams Dam existed in Joliet. The distance between those two ])oints is about four miles. I said that the old Ogden ditch running from Ogden’s Dam in the Desplaines Eiver to the Chicago Eiver was a ditch originally used for the ])urpose of taking the overflow waters fi*om the Des- 3o:j plaines Eiver and emptying them in tiie Chicago liiver, and that was a ditch dug for the purpose of draining that territory througli which the ditch runs. I do not know the exact date when the ditcli was made. It was started at the time of Mayor Wentworth, though, I think. It is sometimes called the Ogden-Wentworth Ditch. I guess it was about 1845. It is very little used now. \i is used occasionally when they overflow from the spillway, the water fills there, took off overflow water from the new spillway built by the district, that is, the overflow water fills the Ogden 548 ditch. I refer to the spillway in the Desplaines liiver just above the old Ogden’s Dam. It ran into the lake, but at present it runs into our channel. It runs out along the length of the Ogden ditch up to a point where the little red line diverts fi*om the Sanitary District channel to the west fork of the south branch and there the water would return from the Ogden ditch and the south branch into the drainage channel. Counsel for Defendant. Q. You don’t know personally that the surveys from which this map was made are correct? A. I don’t personally know, but, of course, I have sufficient checks in the office. That is the means by which the accuracy of the survey is verified and determined. I employed those on that map and found it cor- rect. 549 All of the water of the Desplaines Kiver enters the Sani- tary District channel until we get down to what is known as the Bear Trap Dam in Lockport and is represented here by the upper end of a brown-black strip, and from that point down the water of the drainage channel commingles when the Bear Trap Dam is ox)ened, and when the Bear Trap Dam is closed those waters commingle at the up]>er end of the upper basin, where the yellow-brown and the red band and the black band all come together in the platted territory of Joliet. So that wherever in that map the Desplaines Biver is shown in green and is parallel by the black strip representing the river diversion the green strip represents the old bed of the stream in which no water runs now, and they are separated l)y the canal 304 and embankments, wliicli are represented in various ways on 550 all three of the strips. As I have stated that the scales on strip number one are government sections the top of the map does not represent the north. The north is very nearly on an angle of 45 degrees from a vertical line from the top to the bottom of the map. That is so done in order that by placing the rivers diagonally you get a longer strip of them on the plat. H ill eh ran d, — l)i reel Exa m . — C o ntin ued. Q. You now produce at my request another map which the commissioners marked ^^Hillebrand’s Exhibit No. 2”. Mr. Hille- brand, this Hillebrand’s Exhibit No. 2 is labeled ‘^Sanitary Dis- trict of Chicago map of Joliet and vicinity’’ with other legends. Was that map made by you in the like manner as in the case of Hillebrand’s Exhibit No. 1! A. Yes, sir. I had them made in the office under my superintendence. The words ‘^Chicago, 111., December 22, 1896, Thomas F. Perry, Del.” mean that he did the drafting. He was a draftsman working 551 under my direction as Chief Draftsman. Below that a sep- arating line and then again below that the legend ^improve- ment made whei*e Sanitary District platted March 19, 1907”. The drafting and platting of the improvements made by the Sani- tary District were also made and platted under my direction and are both shown on this map. 'March 19, 1907, it was platted. The portion marked ‘‘New channel of Desplaines River”, also the notation “Main channel of Sanitary District of Chicago”, the improvement made by the Sanitary District between the upper l)asin and McDonough Street and the levee embankment east of the Desplaines River. The part which 1 have pointed out on the map as being improve- ment in the upper basin, as well as that showing the main chan- nel of the Sanitary District of Chicago are enclosed in the red lines extending from the extreme right end of the exhibit down to a point shortly to the right of McDonough Street, then 552 at a point above about Jefferson Street there begins a double red line, embraces a brown streak which extends from the left of Jefferson Street and past ^IcDonough Street along the :]or> margin of the Desplaines River down Hickory (h*eek, wliicli is labeled Levee Embankment.’^ This exhibit substantially re])resents the conditions of things at points indicated as they exist today, as they have existed siiu'c some time prior to March 19, 1907. At the words ^Metferson Street” is a dotted line on an ark labeled ^^T)am No. 2”. That dam has been removed. Also near where the lines Wallace Street projects across the Hes|)laines River a little line marked ^L\dams Dam”. That has also been removed. These dams were removed about 1898 and 1899. They were here in 1896 when the work was originally plat- ted, the survey was made in 1895 and the drawing in 1896. 553 Those dams existed at the time of the survey. Between 1898 . and March, 1907, the improvements were made wliich are delineated within the red lines. Then there is at this time only one dam across the Desplaines River from above the up]:>er basin down to the mouth of the river and that is Dam No. 1, which is the property of the State of Illinois. Dam No. 1 as it now exists was reconstructed by the Sanitary District of Chicago under agreement with the Illinois Canal Com- missioners and built under a consent decree in a suit between those parties. In the upper basin just above Dam No. 1 are assembled the waters of the Desplaines, the waters of the main channel of the Sanitary District of Chicago and the waters of the Illinois & Michigan Canal. They all three come into one common stream and basin. This map is drawn on a scale of 400 feet to the inch, the 554 top of the map is not north. The section line comes there to the east and west. This is the east and west, this side is north and south. I call your attention to the line near the right hand end of the map. That line runs north and south and the line running at right angles to it would be the other section line running east and west. The waters of the Desplaines River run into the ^^New channel 306 Jlillehrand, — Direct Exam. — Continued. of Desplaines Eiver’’. The old channel is indicated on the map in bine marked ‘‘Desplaines Eiver.’’ Q. Suppose, Mr. Hillebrand, yon indicate at the extreme right hand end of this exhibit the east boundary line of the Desplaines Eiver channel as it was before the Sanitary District channel was constructed and before the new channel of the Desplaines Eiver was constructed. You put a mark a on the map and there is a firm blue line passing the appex of the a. That indicates the east boundary of the river channel? A. The east bank. 555 Q. The east bank of the Desplaines?^ A. Yes, sir. Q. Yow similarly mark the west bank of the Desplaines. (Witness marks as instructed.) Q. You place a mark b and adjoining that is a double line. There are some lines quite close together lying otf to the right between the a and the b. What do you indicate where I mark the c ? A. More or less of a bayou of the river. Q. Now, Mr. Hillebrand, between the a and the b are a mul- titude of small figures arranged in columns and some of them scattered about. I note several of them between the a and the b. There is a 40 on the line which you marked as the east bank and there are 40.6 and 43.4, 43.7, 43.6. On the east bank of which is marked with the figure 40, and then along through the area of these channels are groups of columns of smaller figures ranging between 30 and 60 apparently in numbers. What do those little figures represent? • A. Soundings taken in the river by indicat- ing the level below Chicago datum. I think these soundings were taken under the direction of Mr. A. C. Schrader. He was in charge of the survey at that time for the Sanitai y District of Chicago, in 1895. They were taken 556 under the direction of Mr. Schrader by surveyors employed by the Sanitary District of Chicago as a part of the work of the Sanitary District in reference to the construction of this channel down here, and this other work. It was taken in the regular course of business and the reports of these soundings were made to me along with tlie other field notes and data of the survey for the purpose of platting, and they were checked and verified by the assistants in my office in the manner I have 307 previously described and found to be correct, and then were plat- ted as showing tlie soundings of tlie stream. Counsel fok Defendant. How can you check the correctness of soundings? A. We can. For instance, if one figure of something varies a great deal from the rest, we could send for a surv^eyor and ask him the reason. We had the experience, and haying some profiles of the river we get an idea of the average eleva- tion, and if the surveyor’s report is a great deal different we ask him for an explanation. 557 He looks over his notes and sometimes a mistake is in the book. If we find it is in the book he resounds or recovers Ills work. There is a report sent in by the man in charge and, of course, he checks his work and turns it over to me. Counsel for Defendant. And that is all the checks you had? A. Yes. When they come to do the work here of excavating the chan- nel of the Sanitary District and the new channel through the river they would have occasion to dig into the area and in other ways apply their tools and instruments to the very space where the soundings are delineated and in that way would have occasion to verify the soundings. Q. You may state whether or not that was actually done? A. I did not check these. Q. I did not ask whether you did it hue whether that was done in the work? A. Yes, sir. Q. And whether the quantities of material naturally disclosed any inaccuracies in the soundings? A. 1 don’t know that 558 this plat was made long before that work was started. This improvement work was done since the plat was made. I did not check the soundings, I simply showed the outlines. The sound- ings were on the plat before the new work was done. I have delineated on the face of the printed plat as it showed in 1896 the work that has been done since 1896 without any ref- erence to the sounding figures. I have gone right over the face of the sounding figures with the outlines showing the new work. Those outlines showing the new work were put in there in 1907, so that here, for exatnple, to the right of the point ^‘Main chan- 308 Hillehrand, — Direct Exam. — Continued. nel’’ occur and a little below is an area in wliicli are a lot of soundings written across it, wliicli is now dry land. 559 Q. But as conditions existed in 1896 it represented tlie bed of the Desplaines Eiver? A. Not all of it. Q. But where the soundings occur! A. Yes, sir. That is wherever there is a source of soundings shown on the white strip between the main channel of the Sanitary District of Chicago and the Illinois & Michigan Canal. It is now dry land, but in 1896 those soundings were in what was then the bed of the Desplaines Eiver. Below Dam No. 1 where are the words ^^Lock 3” is a very pale blue strip going to the left labeled ^ Illinois & Michigan Canal. The Illinois & Michigan Canal separates from the common flood of the Desplaines and the Sani- tary District of Chicago at that point, that is at Lock No. 5 (in- stead of Lock No. 3). The lock at that point is at the Jefferson Street bridge. The figures similar to the soundings written on the face of the pale blue strip called the canal, a little to the left of Dam No. I, and also again to the left below Dam No. I in the area marked lower basin” were soundings all taken back in 1895, and they represented conditions of the bottom of the channel at that time. 560 In the area between the red lines in the lower basin and in the area colored deep blue for the lower basin here and there are apparent boundary lines which project out into the area on each side show the old bed of the river, islands, etc., as it was before the improvements were made to which I refer. That was the bank of the river as it was shortly prior to De- cember 22, 1896, and the red lines represent the margin of the river as it is today. Counsel for complainant then offered in evidence Hillebrand’s Exhibit No. 2. (Atlas p. 3951; Trans., p. 6571; Abst., p. 1926.) Objected to because it has not been shown to be accurate. The IViTNEss. The Sanitary District of Chicago caused this map to be made in thue regular course of business at the time I have heretofore indicated and it constitutes a part of its records upon the subjects ipoon which I here delineate and show, and the Sanitary District makes regular and habitual use of this map 309 as a correct map in its regular course of business in dealing with the territory here shown, and I have already stated that it 561 was made in the same manner and from the same kind of re^ ports turned in to me by surveyors in the employ of the Sanitary District, as I have testified to in regard to Exhibit No. 1. The large blue print labeled ^^Hillebrand’s Exhibit No. 3” and which has in white letters the legend ‘‘Sanitary District of Chicago map showing ]oarts of Sections 31 and 32, T. 34 N., K. 9, E. of 3rd P. M., "Will County, Illinois, Chicago, Feb. 1905”, with other legends, was made in the office of the Sanitary District about 1904. The label “Chicago, February, 1905,” was put on at the time the drawings were made. 1904 was the date when the suiwey was made, that was made under my direction and supervision as chief draftsman of the Sanitary District of Chicago. The same conditions prevailed as to its being made by sur- veyors in the field and their notes being written in and assem- bled by my assistants and draftsmen under my supervision, which I have detailed more at length under Hillebrand’s Exhibit 562 No. 1 and Hillebrand’s Exhibit No. 2. Q. I see, Mr. Hillebrand, that this blue portion appears to be placed together, several different pieces, also that it shows other areas besides those of sections 31 and 32. For instance, at the left hand end I see the label “center section 25” in a round circle, two circles: Tell us how that map was put together and how it was made? A. The maps were made in different sheets, and in order to cover a certain territory I would have to paste those sheets together. In my records I keep them in separate sheets for different pieces of territory, that is would paste together in this way in order to make a continuous view of the entire exhibit. What rs represented by the long strip that appears to be somewhat less than the one in the wide painted in yellow and running from the left hand of the exhibit along the right hand side running down along the stream of the Illinois Eiver and the Desplaines River and bordering on the opposite side of the Illinois & Mich- igan Canal, is the right of way or property of the Illinois & Michigan Canal Commissioners. It is in part the 90-foot strip 310 and in part wider than that, and sometimes it goes narrower, 563 but it is what is colloquially referred to as the 90-foot strip. Beginning at the left, at the county line, Grundy County, being labeled Grundy County on the left, I see that the yellow strip or coloring is spread out over a wider area than the one-half inch, and that that continues over a little to the right of the double circle, marked ‘^Center of Section 31’’; the whole being between the area in blue, marked ‘‘Illinois and Michigan Canal” on the right, as you go down stream, and the Desplaines Eiver. That area is the Canal property belonging to the Illinois and Michigan Canal; and that is the tract that is colloquially referred to as the “16-acre tract”, which was the subject of lease and sale by the Canal Commissioners to Harold F. Griswold. This plat represents the Desplaines Eiver and the Kankakee Eiver, and the point of their confluence, where they form the Illinois, and for a distance down the Illinois Eiver; together with the location of the Illinois and Michigan Canal adjoining the Sanitary District. These different sheets which make up this 564 exhibit were prepared at various times by me and under my direction for use about different matters of business of the Sanitary District of Chicago, all prior to the date of “Chicago, Feb. 1905”, printed on the exhibit. It was prepared without any reference to anything that is occurring now in this litigation. I got the data for the red strip crossing the Desplaines Eiver near the mouth, labeled “Proposed Power Dam”, and extending along the line labeled “Proposed Spill-way”; and the other mat- ters shoTvm in red, which are shown in connection with the de- lineation of the proposed power dam, — in the form of a blue print from Mr. Eandolph, blue printing that dam. That was the blue print which Mr. Eandolph obtained from Mr. Charles A. Monroe, which was signed by Mr. M^oerman. I received the lYoer- man blue i^rint about six months ago, to the best of my recollec- tion. That then has been added to this map since the time when the printing was done. I assembled these different sheets 565 and pasted them into this one exhibit, I guess about Xo- vember of last year. This coloring was put on at that time. Then, while the different sheets have been made prior to 1905, the pasting of them together in this one exhibit, and putting on of the coloring showing the 16-acre tract — the strip sometimes called the 90-foot strip — the proposed power dam and the proposed spill-way were colored in there in November, 3907 ; and I have no information about that except what I got from Mr. Monroe; and I delineated here and colored in the yellow on each side of the Kankakee feeder, a strip for the right-of-way across the area from the river bank to the county line. Their right-of-way goes beyond the county line^ on each side of the feeder. I suggested by that short strip and leave it to lie understood the rest of the way. These little figures which follow the waving lines on the blue print, which are not upon the river, but away from it, rep- 566 resent land elevations below Chicago datum. Counsel for complainant thereupon offered the plat in evi- dence, viz., Hillebrand Exhibit 3. (Atlas 3943; Trans., p. 6555; Abst., p. 1922.) Cross-Examination, Q. You don’t personally know that there is any right-of-way along the Kankakee feeder, or how much? A. I think I have seen it mentioned. Q. You don’t know anything about it, do you? A. No, no, no. This strip that Mr. Starr has referred to as the 90-foot strip” is known as the ‘^90-foot strip.” It seldom is 90 feet wide; 567 sometimes it is 80, sometimes it is 100. Thereupon it was stipulated that the exhibits be retained by counsel for the party offering them, and to be produced at the trial. And it was also stipulated that the signature and final oath of this witness be waived. Thereupon the taking of said deposition was adjourned until Tuesday, April 14, 10 :30 A. M. 568 William Wiggam, a witness on behalf of the defendant, testified as follows : Direct Examination. My name is William Wiggam. I live at Libertyville now, 569 Lake County, Illinois. I have lived there, I think, five years last October. I have lived in Lake County all my life, except three years I was in Champaign County. I am 70 years old last Xovember. Before I lived on the i3resent place, I lived on my farm in the town of Vernon, Lake County. The Desplaines Biver rims right through the whole length of the farm, from north to south. Except three years I have lived all my life right in this township. I am familiar with the Des- plaines Eiver in that vicinity. I have been up and down the Des- plaines Kiver in that vicinity along there. I drove once with a sleigh load of brick from the Desplaines Eiver to within one-half a mile of my jDlace, right up the bed of the river. I have been familiar with the river between the Desplaines Eiver and my present place. I think I am somewhat. I have been up as 570 far as Vincent’s Mill, about one-half a mile north of my place; — not my iiresent place, — I am in Libertywille, you un- derstand. I mean north of my old farm. T am familiar with the Desplaines Eiver clear to Libertyville, for that matter. I never knew of any boats being navigated upon that river for commercial purposes. As far as I know no boats were ever navigated for commercial purposes on the river during the time that I lived there* There might be such a thing as going in the night, but I would have heard of it, I think. It seems ridiculous to me to talk about a boat going there. Counsel eoe Complainant. I enter a motion to strike out the witness on the subject ^Biow it seemed”, as being irrelevant, as well as not responsive, incompetent and immaterial. Q. Did you ever see any boats navigated on the river for commercial purposes? A. Xo, sir. 571 Q. "Would it be possible in your judgment for any com- mercial navigation to take place on that portion of the river that you are familiar with? (Objected to as incompetent, irrelevant and immaterial, and as calling for an opinion for which no foundation had been laid.) A. Xo, sir, I don’t think it would. (,). Why not? (Same objection.) 313 A. On account of the river not l)eing deep enough, — not water enough. The present condition of that part of tlie river I am familiar with is pretty low just now. Q. What is the normal depth of water in that river at points you are familiar with, during the summer season? (Same objection.) A. Well, I should say it would be all the way from 15 inches up to 3 feet, except the deep holes. Of course, I know there 572 are deep holes, that are 10 feet deep. Q. I say, the normal depth of water during the summer season. I don’t mean the depth of Avater during the periods of freshets. A. No, of course not. Q. But the average depth when thei'e is no freshet, or what do you think that AAmuld be? A. There are places in the river that would not be more than 15 inches deep. There A\muld be holes AAdiere it would be deeper, and those holes are all where there is a bend in the river, AAdiere the Avater has eaten a hole into the soft bank and dug it deeper. Q. Except in those places, the average dejith of water during the summer season Avoiild be about 15 inches? A. I Avould think about that. Counsel for Complainants. The same objection. Witness. T ncA^er heard of any navigation being carried on that river for commercial purposes. When I was a boy there 573 Avas a dam at Vincent’s Mill,- — that is, north of my farm in Lake County. The first recollectio ntliat 1 ha\^e got of re- membering anything is that there was a dam there. It Avas maiir tained up to 16 or 18 years ago. There was a flouring mill and a saAAmnill. They got the logs to saw at the mill, right in the immediate Aucinity of those mills. The logs were drawn to the mill by . sawed sleighs in the winter time and in the spring. These mills Avere always run by water, but there was times they would not have water enough, and the grist mill Avas run by steam. And that grist mill was erected by this man I told you about, Vincent. But there are tAVo par- 314 ties before Vincent that owned that property and maintained the dam. The first man that bnilt the dam was Kenicott. If you know anything about the Kenicott ’s in Cook County, those 574 were the people, the early ones that erected a dam and a saw-mill. The Width of the water in the river at the normal state during the summer season, and not during any freshet would be about, I would say, from 16 feet up to 70 or 80 feet. At places the river would be as narrow as 16 feet, and that is where the banks were high, and then in dry time the original river bed would be there Avith no water on it. Of course, when there is a freshet, then it is Avide there because that country is all low land there. Why, I have seen that river over a mile wide, during freshets. Near Vincent, or Desplaines, the whole country is pretty level, and there might be banks there 10 or 12 feet high, or something like that, for a short distance. There is no bank to that river that you can speak of that holds it anywhere within bounds. It is either one side or the other that it can spread out. Q. Would it be possible for farmers to take any produce down or up the riAmr by means of — A. Not in dry times. (Same objection.) Q. By means of naAugation in boats? A. No, sir. Cross-Examination. I neAmr was in the navigation business. I was a farmer. I never did anything but farm in my life. I never owned a boat. Well, I owned a little scow to go across the river. That was merely for pleasure, riding across there, riding in the timber. I think the dimensions of it were about 12 by 4 feet, high sides. 576 It would carry four or five persons. I guess it would have more than Iavo inches of gunwale above the water when five people were in it. The sides were a foot. It was a scow, the same as this table, with the sides up a foot high. Of course, it Avould go down about half, I should say, with five persons in it. The bottom was perfectly flat, the same as this table. It was beveled at the end. I didn’t make it myself, I helped make it. I got a carpenter to make it. He made that because his father Avorked, when he Avas a boy, worked at these mills in order to— There was a dam that was put there in the first place, put 577 up with small small trees and brush. That is what you calf a brush and gravel dam. There used to be — with a scow that would be about 12 feet square — they used to draw dirt and put into the dam, because they could not get through with the team at times of the spring, whenever it would spring a leak, or anything. Used that to get across to keep the dam in repair. Used to get up the river to a good bank and get whatever they used for stoppage purposes and float down there to the dam, and then dump it in on the dam. They built the dam at one of the bends. They took advantage of one of the deep spots that was made at the bend. The bank on each side of that dam was — a good deal of that had to be made; but what we called the 578 south side of the dam, that had a natural bank, that we never had any trouble about putting anything in there. That would still be as good as a retaining wall; but on the other side, in high water, water used to flow all around the building, and the mill would stand right out in a great lake of water. I should say it would be more than 80 rods to get to the mill with high water, — ■ the water that you would have to cross, because there is all this land west of the mill, where the river at the high water time would run across it. The dam would have to be one-half mile long to have stopped the water from running over. All that country is very flat there. 579 I have not seen the water when it would run over the dam 20 feet high; if it was over the dam 20 feet, it would go from a mile to five miles wide, that river. Well, I have seen times when it did go at least 3 miles, — I have seen it pretty near it. ‘ 580 I live right where I saw the river, you might say. My business would take me to the mill any way one-half a dozen times in the year, — perhaps more than that. That was the time we used to raise wheat and we used to grind our wheat there, and I presume I went there once a month right straight along. That would be any time when I had wheat I wanted ground. Of couc^^e, in those days we didn’t have facilities for taking care of many barrels of flour, and we went whenever we needed to. I don’t 581 know whether there was a ferry at the mouth of Mill Creek I don’t believe I do know Mill Creek. I didn’t know a ferry 316 at any point. I am pretty sure. What do you mean, for trans- porting passengers? Q. No, I mean, they used a scow at each side of the river, two or three times as large as the scow, which you kept for your own use, which was big enough so that a man could load a wagon in it and take it across the river. A. Then that would he away north of me. Q. Yes. A. It is possible that there migh.t he, that is before they had a bridge, I don’t remember a thing of that. (The foregoing witness was examined on behalf of the defend- ant at this point by agreement of the parties and his signature and subscribing oath to the deposition were waived.) Clarence H. Palmer, 582 a witness for coiu])lainant, testified as follows: Di red Exa ini n ation . My name is Clarence H. Palmer. My age, 40; my business, manager of the Kacine Boat Manufacturing Company, Chicago Branch; — that is, a manufacturing branch which is engaged in the manufacture of boats, with the factory at Muskegon, Mich- igan, and one of the general distilbuting offices in the City ol Chicago, and this Chicago branch is in my charge. I have been in the business about ten years. I never was in the boat business until I Avent with that company, as a Imsi- ness. Before that I was in other lines. 583 Q. Mr. Palmer, are you able to tell us from your knowledge of the trade, of the manufacture and use of boats; when the form of boat which is called the '-'motor boat” first began to used in the Middle AYest, — meaning thereby the states between the Allegheny Mountains and the Missouri Eiver ? A. The term "motor boat” has been a]^plied within the last four years, to what were tlien just launches. The term motor boat is applied to a boat that is huilt for speed ]uore than comfort. It is a boat that is long and narrow, and its AAdiole object is for speed. The term "motor boat” is taken from the automobile, and is only about four or five years old, as :n7 applied to ])oats, l)iit the laimelies have been in existence for two or three years prior to the World’s Fair of 1898. That is entirely a speed boat, the same as a race-horse. The launches to which I referred were in use as 584 freight l)oats. The construction of a launch generally for freight purposes would be a boat, say about 25 feet long, by 6 to 8 feet beam, built heavy, and with a gasoline engine of from hve horsepower to 16, — varying according to the current that they wished to go against and the work they have to do; and those would be the smallest, — from that on up to larger sizes, — up to 100 feet long, and say, from 17 to 20 feet beam. To find the tonnage that a boat would carry, you multiply the length of the boat by the beam and by the de])th of the hull, and divide by 95. Take a boat 100 feet long and 20 feet wide, and multiply this together, that gives you 2,000, de])th 2, gives 585 you 4,000, divide by 95 and that would give you 42 tons. A boat of those dimensions would carry that load in addition to carrying its own machinery, and the gasoline by which it is operated and its crew. That boat would be a little out of proportion. A boat of that dimensions would be more than 2 feet in depth of hull. The draft of the boat and the depth of the hull are two dif- ferent tilings. The draft would be the amount of the boat below the water, — that would be 2 feet below the water, but that boat would necessarily be from 4 to 6 feet out of the water, so that a boat of that description instead of being 2 feet depth, the hull would be at least 6 or 8 feet, and still draw 2 feet of water 586 and travel on 2 feet of water, — so that you have got to figure on carrying more tonnage. What is considered draft is from the lowest point of the boat, to about water line, where the water comes on the boat, — that is the draft of the boat. As to where the water line came with reference to the depth of the boat would depend upon the con- struction of the boat. In the tunnel boat, — the propeller, — there is a tunnel built up into the hull. It is more like the cast of 587 your hand placed like that (indicating), making a dome to keep the propeller in. When the boat is stationary, the pro- peller is half out of the water. As soon as the propeller is started 318 Palmer, — Direct Exam. — Continued. up with the machinery, it lifts the water and fills this dome, and . then acts the same as if the screw was so many inches under 'water. For instance, you had a 20 inch screw stationary, the propeller would only draw 10 inches of water, but as soon as the motion begins, why this cavity is filled with water, and she goes the same as if the propeller was more than 20 inches under water. Those are a line of shallow draft boats, and they were first built in England for use on the Eiver Nile. I don’t know as I can give you the date when they were first built. It was prior to the World’s Fair. We introduced it in this country, I think somewhere about 1898 or 1899, — I would not be positive. I am manufacturing boats of that type now. The power is generated by gasoline engines. The gasoline engines are two types: the 2-cycle and 4-cycle. The smaller engines and boats used are generally the 2-cycle type, — that is, up to about 10 or 15 horsepower. The difference between the two engines is: the 2-cycle has an explosion at every revolution of the fly-wheel; the 4-cycle has an explosion at every other revolution of the fly-wheel. The effect of this explosion in the matter of producing power is that the explosion is a mix- ture of gasoline and air; that is supposed to be 1 of the gasoline to 8 of air, which gives the best mixture, and this is exploded in the cylinder by an electric spark. That is generated by bat- teries,— generally storage batteries, or dry batteries, or even djmamos are used on some. This forces the piston down and the momentum of the fly-wheel impels the piston to the top of the cylinder, where it compresses the gas, to the next explosion; and this is contined. These freight launches and boats are in use all over the 589 country on rivers and lakes, especially on the smaller rivers of the country and on canals. Relative to the manufacture of steam vessels, — from the time that the freight launches came in, the small gasoline boats have had the greater increase in use, at a ratio of, I should say, pretty near 100 to 1. In this manufacture and use of the steam vessels, from the time it began, it progressively grew larger, and the use of the 319 steam vessels was made burdensome in the United States by liav- ing steam boiler inspection, and a licensed pilot and a licensed steam engineer, examined under the rules of the P'’ederal Gov- ernment. These burdens do not apply to freight boats, below 50 feet. The burden of the machinery and fuel to be carried in the motor freight launch, I don’t think takes up 20 per cent, as 590 much room as steam. There would be a net saving of 80 per cent, relatively on the items of machinery and fuel car- ried. From my acquaintance with the business and the use of boats with the coming in of the freight launch and motor boat, there has been a decided increase in the amount of navigation and com- merce carried on the internal smaller waters and streams. Gasoline engines have been adopted by a great many canal boats through the country, that have taken out steam; and also they have taken out steam from some of the smaller freight boats and installed gasoline on the rivers. The steam turbine engine is a steam engine, which itself re- volves with successive discharge of steam from small pipes, — the circular motion taking the place of the reciprocating forward and back motion. The turbine itself has not been put in on the small launches. 591 Q. That is a matter of the larger craft, as far as you are concerned? A. Yes, sir. Cross-examination waived. The signature and subscribing oath of the foregoing deposition were waived by stipulation of the parties hereto. 320 John M. Sweeney, a witness for complainant, testified as follows: Direct Examina fion. 592 My name is John M. Sweeney. I live in Chicago. My business is mechanical marine engineering. I am interested in the Outing Boat Company’’ of Chicago, who build motor boats, in the ^‘Howard Ship Building Company” at Jefferson- ville, Indiana, and in some allied properties with that concern and repair plants on the Ohio Kiver. I have been building river boats particularly since about 1876 or ’78. Our steamboats have been used generally on the western rivers of the United States, some in South America, some in Mexican rivers, but generally on the western waters; the waters that flow into the Gulf of Mexico, as they are classified. I think I have built several 593 boats that have gone into the St. John’s Elver in Florida, and some in the Chattahooche Elver, which flows into the Gulf of Mexico. I am acquainted with the type of boat known as the ^‘Naph- tha Launch.” The strictly Naphtha Launch, according to my best recollection was used beginning about 1880. In my answer I am distinguishing between the Naphtha, and present Gasoline Launch. Generally the Naphtha Launches were small motors, displaced or substituted for steam power, or was used in boats where steam power was hardly applicable. The naphtha power later on was improved upon by the Internal Combustion Motor. The Naph- tha is not an Internal Combustion Motor, and practically to- day has displaced that. The boats for quite a while on the lagoon in Jackson Park, until last year, were Naphtha Launches. 594 Several of them are still, although they are now beginning to introduce the Internal Combustion. The Internal Combustion Motor is a motor where explosive gas or something else is ignited in the cylinder itself. The motor that is used is generally known as an automobile motor. This type of boat came in practically seven years ago from this time, I should say. I am not speaking of the experimental list. I am speaking of the time. I think the first boat of that kind in Chicago was exhibited in the Anditorium around on Congress street in 1900 by a Detroit firm — Bloomstrom. From that time to the present time, the Internal Combustion Motor has multiplied very fast. Within that eight-year period, the number of Internal Combustion Motor boats in use, on the best data that is perhaps available or obtainable, reaches 595 about 200,000. There are about 200,000 of them now. They are used for all purposes. The inspection law draws a line between boats of fifteen tons or under that. Boats of over fifteen tons require inspection and licensed officers; boats below fifteen tons do not, unless they are used for purposes of hire or carrying passengers for hire. The old-fashioned steam boats which were in use in 1880 re- quired a licensed pilot and a licensed engineer, as well as in- spection of the steam boilers, where they came under the inspec- tion service. The test which brought them within the inspection service was ‘‘a boat propelled, in whole or in part, by steam operated on navigable waters of the United States.’^ Decently that language has been construed to mean that any boat pro- pelled by motor of any kind, shall be construed as propelled by steam. My impression is that that is an edict of the Department. I do not think it is in the form of a statute, as yet, but they are trying very hard to get it there. Prior to the making of this ruling, a motor boat did not 596 need to have a licensed engineer, under the navigation law, because the law applied to those boats that ^‘were propelled in whole or in part by steam. The boats that were propelled by internal combustion or gasoline, are not steam vessels. They do not use steam at all. The cost of inspection itself was not burdensome, but the grow- ing requirements of the Bureau as to outfit and as to the numerous life-saving apparatus and life boats, as applied to the licensing for instance, to a certain extent as applied to boats navigating shallow streams, has been a great factor in diminishing the use of steam boats in those streams. These burdens have not, up un- Siceeney, — Direct Exam. — Continued. 322 til tins time, been applied to motor boats and gasoline craft. o97 I think they will from this time on, perhaps. Web, speaking of the last four or five years, which is the best pulse of what has been taking place on the Ohio Eiver, I should say roughly, without having statistics, but simply as a mat- ter of observation, that there have been four or five, some small, gasoline or internal combustion boats built and put in commis- sion, to one steam-driven craft, and the Ohio Eiver to-day is de- veloping an awful big business along its shores by the use of gaso- line boats towing very light barges that can be left at one spot or another, and in that way they use very much smaller fuel than a steam boat could use. The saving in the motor of carrying heavy machinery and fuel, enables these motor craft to operate shallower waters, and they are lighter boats too, generally, lighter draft boats. I have never built any boats for the Chattahooche that were smaller than 150 feet by about 26 or 28 feet wide. These boats would draw, without any load in them, about 20 or 22 inches. Not evenly, all over, because a boat of that type, if she is draw- ing 22 inches at her stern, she would probably draw 18 inches 598 forward. A boat of that kind, where you are carrying cotton down the Chattahooche Eiver would be loaded deep in the vessel, so if the bow, was very much deeper, would be loaded to about five feet. A boat of that character would carry probably 150 tons. To describe in the normal construction as to length and breadth and depth of hull, as distinguished from the draft of the water, a boat carrying 50 tons, independent of weight, would be probably 100 feet long by 20 feet beam — I am speaking of a steam boat now — she would draw, without any load in her whatever, about 18 inches — from 12 to 18 inches, depending upon how much pas- senger accommodation. If no passenger accommodation, 12 in- ches. It would be possible to construct that boat on a 12-inch draft, and a boat of that dimension would carry, for each foot of dis- placement, 50 or 60 tons ; 50 tons, any way. 599 I do not know of any boats as large as 100 by 20 feet, gaso- line driven, that have been put in commission, but I was on a l)oat the otlier day which was 85 feet l(3ng and 15 feet wide, that was di-awing light, about 10 inches at the deepest end of it, and her average displacement was probably 8 inches; average draft, T mean. That boat would carry, exclusive of her own weight, about 50 tons to the foot; I mean 30 tons to the foot of displacement; to the foot of immersion ; each foot of loading. As T say, that is only approximate, because I have used 60 pounds as the weight 600 of a cubic foot of water. It is really more than that. If the boat is 85 by 15, there would be 7,500 cubic feet of displace- ment for each foot of immersion, which in round numl)ers is 371 tons, call it 35 tons. That boat on two foot of water would carry 30 tons; more than that, a little. I judge. With the incoming of these internal combustion motors, com- mercial navigation upon the shallow draft stream of the interior has increased undoubtedly, particularly if pleasure purposes are included. They are also used for commercial purposes. I knov»^ that the steam boat men on the Ohio River are kicking a whole lot about them getting into the short trade. The expense of operation, as compared with steam vessels is perhaps less, considering the adapt- ability, and I doubt very much whether the fuel consum|)tion itself is less. I think the fuel consumption is in favor still of the steam craft. 601 The installation cost on a motor boat, in small sizes, cannot be compared with the installation cost on a steam boat, because a motor boat is available where the steam would not be, and I think the converse of that proposition is true, but on the very large sizes the steam installation is the only a^aiilable one. It is the middle field in vhich you c in make coiu[>arison of ilie cost of installation. A motor boat could be installed on shallow water, where it would not be possible to install a steam vessel. There is a formula for computing the displacement necessary to a given load on a shallow draft stream. Assuming that a cubic foot of water weighs 60 pounds, as the value which is used in this calculation which I made here a little bit ago, after the boat had furnished its own buoyancy^ — provided for its own buoyancy, or its own displacement, each cubic foot of water that was displaced further by further immersion, would mean 60 pounds of carrying capacity. If the cross-section of the 324 Siveeney, — Direct Exam. — Continued. boat, or tlie cubic displacement of a boat for each inch or each foot is krivAvn in cnoic feet and cubic inches, it is a little mathematical problem to work that ont. If yon multiply the length by the breadth and then by the depth making cubic contents, and multiply it by 60 pounds for each cubic foot, it gives you the weight of 603 the water displaced by that much immersion. That causes that much additional immersion; or to find the reverse propo- sition, the amount of the boat displaced would give you the weight of the boat itself, without the load. If a boat had two water lines, one where it was empty, and one near where it was higher, where it was loaded, the length by the breadth multiplied by 60 would give you the number of pounds or load that would be represented by the additional foot of immer- sion. A tunnel-built boat, is a term that is applied primarily to a boat designed by Thorneycroft in England, for the purpose of applying a propeller wheel, so that it would not extend below the bottom of the boat. It was first done for some of the very shallow draft boats which Thorneycroft and Yarrow, and other English firms, built for African rivers, such as the Nile and Zambese. Some of these boats, which were called ‘‘Mosquito” ’*.oats w'ore as light as 8 inches. 604 They would carry a great deal of freight. They are a very large, wide boat. In place of having a proi^eller wheel extend below the bottom of the boat, it would set up. The stern of a boat built with a tunnel in it, so that the water would rise as the boat went along, the water being under compression, under the bottom of the boat, would rise into the tunnel compartment and give the wheel water to act upon. It was put there so that the boat could pass over places without injury to the wdieel, wdiere she could be floated. It has been applied for use on shallow streams. There have been two boats of that character built for the Ohio Eiver. One is owned by the government, towing barges. They are Twin Sister boats. The other boat is just completed, not in commission yet. 605 In case of the tow boat, they carry no load except their own fuel, but they are loaded to the capacity of the river, at 325 certain times at least, with fuel so as to carry the maximum of the barges which they tow. In connection with the Missouri Eiver, I have just completed designs for a couple of steam boats upon the Missouri Eiver to be used between Kansas City and St. Louis. The estimate of the draft of these vessels will not exceed 22 inches at the stern, and 18 inches forward, for the light draft, carrying a displacement of practically 500 tons. The boats themselves are 240 feet long and 44 feet wide, and the boat will carry on her maximum load draft, which would be 8 feet forward and four feet aft, 1200 tons, in addition to the weight of the boat itself. 606 C ross-Examination. The tunnel boats in use in the United States other than govern- ment boats to which I have referred, are confined, so far as my knowledge goes, to small boats. There are several of that kind. There have been in the last four or five years, well I do not know how many, but I know that there have been more or less pleasure boats. Perhaps they have been used, to some extent, commercially. The government boat, that is the tunnel boat, the ‘‘Ramsey,” of about 26 by 120. The other boat is probably 28 or 30 by 150. In the ordinary motor boat used for commercial purposes, the pro- peller does not extend below the bottom. I will have to explain that answer, because the boat loaded should be deep at the head, and in the flat stern boat, particularly, the scheme is to 607 (drawing diagram) that being the water line, this is the top of the boat. Now, assuming that the bottom, as is shown there, is parallel with the top of the water, the wheel is above the bottom. That is the practice of the company I am engineer of in building motor boats. Thereupon it was stipulated that the witness might furnish a blue print which would contain expressly the diagram in accurate form, and when labelled with his initials, the same might be ad- mitted as an exhibit in connection with the witnesses testimony. Said blue print was received in evidence. Atlas, 3946; Transcript, p. 6561 ; Abstract, p. 1924. 608 Tbe object of making that diagram is that the bow of tbe boat goes down in the water very much further than the stern, 326 and lliat as the propeller wheel is set in the stern, the bottom of it Vv'onld not he below the bottom of the bow. I do not mean to say that all boats are constructed in that way, hut that is the favorite construction to-day, in what is known as the ‘‘Torpedo” stern boat. That is the construction used very largely for commercial purposes. It is the change, and it is really the recent development of all there is in boat construction, tUat when the boat is being propelled the stern of the boat does not settle. The wheel is always immersed to its full depth approximately, so it may have a little greater depth than that when the stern is loaded under, hut the loading always intensifies that forward movement where the boat is. 609 Re-direct Examination. It is pretty hard for me to say when the tunnel construction came in. It certainly was within the last twenty-five years. We had a congress of engineers here in 1893 — AVorld’s Fair year. I remember at that congress there was a paper on the tunnel boat. All the engineers were not conversant with it. I remember that the paper went on to describe an experiment that had been made by putting a half inch by three inch gas pipe in the tor) of the tun- nel, and I'unning it up through the deck of the boat in order to de- termine iiow much pressure there was in the tunnel, as to how high the water rose in the top. I have the published proceedings of that meeting, hut I could not put my finger on them. Egbert E. Ore, 610 a witness for complainant, testified as follows: Direct Examination. My name is Kobert E. Orr. My business is assistant chief draftsman in the employ of the Sanitary District of Chicago. I have occupied that position since August 4, 1906. I have been m the surveying business since 1880. I am a graduate of the Uni- versity of Illinois. I have tracings here and part of the records of surveys in the possession of the Canal Commissioners of the State of Illinois, and the document now shown me marked “Orr Exliil)it No. 1, April 14,” which appears to )}e a ])hie print, is a till l)liie print of tlie index ])age of jhat book No. 2 of the records of the Canal Commissioners office. I found it in the records of the Sanitary District office. 1 took it down and had the survey attached, which appears here, hy John M. Snyder, acting secretar> of the Canal Commissioners of ‘the State of Illinois. It is a copy of the general index plat showing the route of the canal and the lofcition of the Desplaines Diver and its trilmtaries and the old novv^ nhondoned towns of Kankakee, Dii Page, Channahon, Joliet, IjOck}jort, and along and touching the Des])laines Diver as it a])- ]u?ars in the original record of the survey of the Canal Commis- sioners. Thereu])on the coni})lainant offered said index jhat in evideiu'e. (Atlas 392:3; Trans., (1511; Abst., 1917.) (Objected fo as incom|)etent, irrelevant and immaterial, and no sufficient ])roof of its correctness.) . ()12 Deferring to the document now produced marked ^‘Orr Ex- hibit No. 2” is an exact tracing of the index ])age of })lat l)ook No. 2 in the Canal Commissioners office at Lockport. It is a duplicate made hy the blue print process of the original. Orr Exhibit No. 2 when connected with On* Exhibit No. 1 ex- hibits a complete showing of the survey for the canal from the beginning of the Illinois & Michigan Canal at Bridgeport down to and beyond the end of the canal in Township 34, Dange East, the two joined together where the section lines and township lines show that the Desplaines Diver is represented as a continuous stream. I caused that to be prepared and certified in like manner as Exhibit No. 1. 613 It represents the recorded survey in the custody of the Illinois Canal Commissioners and the route of this canal as originally constructed with the old towns bordering along the same, Keepotau, Athens, Desplaines, Harmonville, Summit and Bridge- port. Exhibits Nos. 1 and 2 show the Desplaines Diver and the canal from the mouth of the Desplaines Diver up to Summit in Town 38, Dange 12 East. The continuous white line beginning on Exhibit No. 2 at a point 328 Orr, — Direct Exam. — Contimied. eallecl Bridgeport and running diagonally southwest to Summit and then southwest down through and near the river, and then beginning on Exhibit No. 1 in Section 25, Township 37, Bange 11 East, and running west, southwest, then southerly, and then cross- ing the river in Joliet and running west by south and west on the north side of the river through Township 34 N., Eange 8 East, represents the Illinois & Michigan Canal. Thereupon complainant offered said Exhibit No. 2 (Atlas 3923A; Trans., 6513; Abst., 1918) in evidence. (Objected to. No sufficient foundation laid for its authen- ticity.) 614 Orr Exhibit No. 3 is a blue print copy of the record plat book No. 1 showing the junction of the Desplaines liiver with the south arm of Mud Lake in Section 12, Township 38, Eange 12 East. It is a true copy of the original record in the possession of the Canal Commissioners. I have seen the original record myself, compared every item and every note. There appears to be a slight jog where the words ‘Mutlet of Mud Lake” appear as if the two lines which embrace the words ‘Cmtlet of Mud Lake” do not quite correspond with the words ‘Csouth arm of Mud Lake.” That is an error in the copying. In its copying in the original they do join. Orr Exhibit No. 4 shows the authorship of those records plat books Nos. 1, 2 and 3 in the State Canal Commissioners office. 615 It is an exact copy of the original. I have personally com- pared it. The note ‘‘This piece of land was once enclosed by a ditch which has since been abandoned and is now a common, June 5, 1847,” wdiicli appears on the foot of Orr Exhibit No. 4 em- braced in a bracket, is an exact copy of the corresponding note on the original. Orr Exhibit No. 5 is a copy of page No. 7 plat book No. 1 of Clmal survey of Section 15, Township 37 N., Eange 11 East. I have personally compared that with the original and it is a copy as to notations and everything. On the left of said exhibit in the notation “N. B. full lines on margin of river were run by N. E. walls in 1821 and line of deeds on margin of river on N. E. & S. IV. Bayou is the meander L. of the survey of the peninsular of 1846, A. J. M. by order of Gov. Sur. Gen.” The initials A. J. M. are 616 those of A. J. Mattliewson, the well known surveyor of the canal. I personally compared all of these Orr Exhibits wliich I have produced with the corresponding originals in the custody of the Canal Commissioners and found them to be exact copies. (Objected to on the grounds already specified. Exhibits 4 and 5 further objected to on the ground that the certificate of John M. Snyder that appears attached thereto is incompetent evidence and ambiguous and uncertain.) Thereupon counsel for complainant explained that there was a vacancy in the office of the Secretary of Commissioners and that John M. Snyder was the acting secretary in the actual custody of the records. Thereupon complainant offered in evidence from the public volume of the Keport of the Canal Commissioners of Illinois to Governor John E. Tanner, December 1, 1900, being the official print, Springfield, Illinois, Phillips Bros., State Printers, 1901, the paragraph on page 235 reading as follows : 617 ‘^The Matthewson Survey of 1847 & 1848 gave the width of the canal and the lines of the reserve tlie entire length of the canal.” C voss-Exam. i n a t i o n . I compared all the figures with the plats in the office of the Canal Commissioners and scaled in a great many places to test them and they do not vary in time more than a fiftieth of an inch so that they are exact copies of those records and I have shown the authorship of them in that affidavit, also in this re- port. The signatures and subscribing oaths of the foregoing wit- nesses to their respective depositions were waived by the stipu- lation of the parties hereto. George B. Fox, a witness for complainant, testified as follows : B i re ct Exa min atio n. My name is George B. Fox. I live at Wyoming, Ohio. I am engaged in the manufacture of paper. Wyoming is located in 330 Fox, — Dl red Exa m . — Con t in u ed. the County of Hamilton, about twelve miles north of the Cit}^ of Cincinnati. The name of the business concern is known as the Fox Paper Company. The mill is located in Lockland 619 and is adjacent to the Village of Wyoming, through which the Miami & Erie Canal, that runs from the Ohio Eiver to Lake Erie, runs. We make use in our business of this canal in the transportation of raw material to the mills and of the finished product from the mills. There are four of our mills that are located on the banks of the Miami Canal. The canal is one of the principal means of transportation by which raw materials are brought in and the product carried out from the mills. I became interested in these mills in the year 1868 and have con- tinued operating them ever since, then continuously since 1868 I have been making use of this waterway to get into the Ohio Eiver for transportation. Steam was used as a method of oper- ating canal boats on that canal on perhaps three or four oc- casions by other parties and myself since that time, all of 620 which, however, proved to be a failure. .MTien the so-called electric motor, or the Miami & Erie Canal Transportation Company intended to engage in the business of the transporta- tion of boats, they bought up all of the boats they could get hold of and proceeded to lay down a track under a franchise obtained from the state, claiming that they would be able to o])erate the boats by motor power and succeeded in getting a track laid down from the City of Cincinnati to Dayton before they undertook to do any business, then they began to tow boats with this method and in a few weeks pronounced it a failure. That was by means of a motor running on a railroad track along- side of the canal. It was an ordinary railroad track that was made very heavy and strong, as heavy as any railroad, I guess, operated in Ohio. But the difficulties in the transmission of the power and the making of the connection and the friction which generate and other causes rendered it impracticable. They themselves ad- mitted that it was a failure for several causes. In the construc- tion of the track they occupied the tow path which rendered it })ractically impossible to use horses and mules. I learned of a new method of pro])ulsion, sought the patentee and arranged witli liiiii for the use of liis method along the d21 canal from Dayton to Cincinnati. That method was known as the Coen System of Propulsion. (At the trial of said cause, counsel for complainant ottered in evidence a certified copy of the United States Patent Xo. 733010 for the ])ro})ulsion of vessels, l)eing the (^oen patent re- ferred to by said witness Fox. Objected to as incompetent, irrelevant and immaterial. Ol)- jection overruled, and said docuiment was received in evidence. App. II, p. 3891 ; Trans., ]). 5800; Ahst., ]). 1725.) An opening is cut into the bottom of the l)oat of the size, we judge 30 inches wide and about 22 feet long. Over this opening we construct a magazine that was 30 inches in the center and 30 inches wide. From the high ])oint it ])ioceeded down to the loot- tom of the boat, at the ends it is a semi-cylinder placed at an incline at the bottom of the looat, in the center of whicli cylin- der we ])laced a 28-inch wall with three flukes, ordinary pro- pulsion wall, and to operate it had a gasoline engine from the outside with a shaft running through the shelf with the ordinary modern combustion gasoline motor. I have a ])hotograph of the first vessel that was operated with this magazine and tunnel. The picture marked ^‘Fox Exhilut No. 1” is such ])hotograph. It is a photograph of the internal a])pearance of the first boat that was constructed by the above method. This semi-cyl in- 622 drical elevation which project upwards running backwards from the lower right hand corner of the photograph is the magazine in which the wall was ])laced. That first boat was con- structed and built in the summer of 1903 or ’4. I have been using boats of that type in the transportation of the raw material in and of the finished product out of my factory from that time to this. The boat represented in Fox Exhibit X’o. 1 had a ca- pacity of from 50 to 60 tons. The horse power in this boat was 14 horse power. The boat light and without a load would oper- ate on about 10 inches of water and we could float it down to 623 four feet of water easily if we had the water in the canal, but unfortunately the water had been ])ermitted during the time the electric motor people occupied it to fill up with mud, so that we could not safely load it to exceed two and one-half feet going up stream, pretty nearly three feet going down stream. Fox , — D i rect Exa m . — Con t in lie cl. Counsel for Defendant. I object to that answer and move to strike it ont as not responsive to the question because the ques- tion was ^^in what depth of water would the boat float’’ and the witness answered what the draught of the boat was. Counsel for Complainant. Well, you may state whether or not it was operated in the respective depth of water which you have mentioned. A. Yes, it was. When there was 10 inches of water in the canal we could oper- ate the boat. The draught of the boat when it is not loaded 624 is about 9 or 94 inches. One of the objects of the magazine or tunnel in the bottom of the boat is to enable the pro- pelling wall to operate without making a requirement of addi- tional depth of water with the wall itself. Some of the other objects are to avoid striking a rock or boulder or a tow line back and forth in the shallow water of the canal, and if the wall is about to hit the bank or strike some obstacle and the wall being up in the magazine is far from any object of that kind, and we never have had any trouble excepting when a timber or some- thing that the boat would fasten that would be held in the ground and would fly up. The magazine would not keep the boat from striking the obstructions but would keep the wheel from striking obstructions. The length of the boat represented in Fox Exhibit No. 1 625 is 80 feet. Those we built later, I think, were 81 feet and the breadth was 314 feet. We had them built some were three some were four feet high, the hold, and others were 44, and I think we had one built flve feet high. These boats that were built five feet high could all of them operate on 10 inches of water. The actual displacement of them was 9 or 94 inches. The photograph produced marked ^^Fox Exhibit No. 2” is the outside appearance of said first boat. The other boats in appearance, however, are practically the same. It is from the same model except that the length is about a foot longer. I may say that this boat was one that I had built in Buffalo about twenty years prior to the time that the method of propulsion was put in this boat. We had been 626 operating it for about twenty years when the new magazine propeller was put in in 1904. The boat was first built in O‘>o oo>) Buffalo in 1884 and the type was that of boats in use on tlie Erie Canal. It was built by the firm of the name of George Notter & Son, who are builders of boats on the Erie Canal but who never built an iron boat until they built this one. This boat is an iron boat. The latter boats are steel. At the time I had this boat built one of our manufacturers 627 also had a boat built, and about the time that we adopted this method of construction the parties who operated the other boat had used it pretty roughly and thought it was all worn out and sold it for old scrap. I bought it and put in a new bot- tom. I figured that it was about as good as new and then put in this method of propulsion in this boat, and after operating it two years I made a contract with a concern in Cincinnati for the construction of six more, all of which were built after this model and completed, arranged for propelling it in the same way as this. During the past summer the state is rebuilding the old lock between Dayton and Cincinnati and we could only at times operate them between certain points when we could get the water in the canal, but we are continuously operating these eight boats from Dockland to Cincinnati. This Fox Exhibit Xo. 1 shows the general lines of the boat and of the magazine propeller which are common to all of the eight boats, with the exception, of course, that the height of the iron works here, is six inches to a foot greater or less than in others. The wooden decks are all the same. 628 The capacity of the boats all run about the same. They are made of uniform size to conform with the construction of the locks, the width and length. This system of propulsion reduces the amount of trouble not from rocks particularly, but from the canal filling up with formation of bars and silt and mud in -the bottom of the canal. We never operated by propulsion before. They were all pulled by horses before that and had trouble at that and that trouble has been greatly reduced by this system. 629 The propeller is about. an inch above the level of the bot- tom of the boat, between an inch and a half to two inches above the bottom of the boat. Fox, — Direct Exam. — Continued. 00 \ fJO-r AVe found that when we put the boat in the dock and the ma- chinery in stall that when the water came into the dock air pre- vented the opening to he filled with water so that it was a mass of air in the air chamber instead of water and the wheel turns around without even striking water. The advantage of the sys- tem is that we have a little air pump and we extract air from the magazine, pump it out and water fills up in a column about six or eight feet high which the inventor claims gives us a 630 pressure of six or eight feet of water on top of the wheel. At any rate we had the wheel submerged and the force to throw the boat in four inches of water we could have an eiglit foot pressure according to the claims of the inventor and I don’t see why his claim is not correct. It has proven a practicable com- mercial method of o])erating freight boats for the transportation of freight to and from my factory. It is much more practicable than the mule principle and much more desirable to operate. AVe get better hands to work them and if a stream comes or the trip is completed that boat is tied up and we have not a lot of tired or sick mules to take care of or towlines to buy, and it ends. Since the operation of these boats the railroad people have 631 started to bump up against us pretty strong and they have since that time made a rate of $5.00 a car into the city when they used to charge about $30.00. AVe ship our stuff by rail at $5.00 a car when we have a carload, but when we have less than a carload we take it by these boats for perhaps less than half of what they would charge for less than car lots. This $5.00 rate has taken the place of the $30.00 rate, which was in force until we installed this system of internal combustion motor boats, and their object and use is entirely the transportation of freight. "We have no other use for them and they are in continuous use. Thereupon complainant offered separately Fox Exhibits Xos. 1 and 2 in evidence in connection with the testimony. (Atlas ])p. 3)017-8; Trans., p>]). 6563-5; Abst., ]). 1921.) Cross-Examination. I said these boats drew nine inches of Avater Avith no loads in them and that they could operate in ten inches of water noAv AAdien they had a load such as Avould make them ]n’ofitable to G32 operate for commercial pur})oses. We could not operate them profitably at 15 or 18 or 20 inches, hut I believe that we could operate them profitably in two feet of water in addi- tion to the nine inches draught. We have a trade that we could operate them profitably at less. Q. AVhat I am trying to get at, Mr. Fox, is how much water would be necessary to operate these particular boats profitably for commercial purposes on that canal 1 A. That would be a very difficult matter to answer. We have certain trade that we could operate them profitably at even a trifle less than that, such as what is known as wadding and padding, where we get a very high rate per hundred, in other words, we will load a boat 633 down to 50 tons and down to 21 to 3 feet, and we may not perhaps get quite so much for a load into the city as when we load it with the wadding and padding where the freight rate is from three to four times more per hundred. There are grades of freight, you know, that you get more for and groceries again coming up are of a light nature, for which we get a low rate. If they are loaded with heavy matters, such as paper or starch or soap or candles, we could put on from 50 to 60 tons if we have water to float them in. The water re([uired to operate the boat depends on how heavy you are loaded, T should say, about three feet of water with a heavy load. That is not in addition to the 9 inches draught and we could load a boat full of light material and it would ])rohably not go down in the water more than two feet in all. (At the conclusion of the reading of said deposition in the trial court, counsel for complainant offered in evidence a cer- tified copy of United States letters patent #733010, for -the Propulsion of Vessels, being the Coen ])atent referred to by the witness Fox. Objected to as incompetent, irrelevant and immaterial. Puling of said court on said objection. Objection overruled. Said document received in evidence. (For copy of said docu- ment,* see Appendix II, page 3891; Trans., p. 5860; Abst., p. 1725.) Said ruling on said objection appears Trans., p. 2599; Abst., p. 870.) 336 Benezette Williams, 634 a witness for complainant, testified as follows : Direct Examination. My name is Benezette Williams. My business is in Chicago. I reside at Western Springs, all in Cook County. My age is 63. My business is that of engineering and contracting. I have been engaged in that business for over thirty years, thirty-five years. I was engaged in railroad work for a short time in my early years, and was then engaged with the City of Chicago as as- sistant sanitary engineer, superintendent of streets and city engineer. I subsequently have done a great deal of hydraulic work all through the county and among others. I was on the commission for the Chicago Water Supply & Drainage Com- mission along about 1886, previous to the drafting of the 635 Sanitary District law. I was subsequently in 1892 identi- fied with the Sanitary District to some time in 1895. I was chief engineer of the Sanitary District for a year and a half. I have been identified with engineering projects and during a greater part of the time with hydraulic engineering for over thirty years. I have seen the site of the Desplaines Biver near its mouth, where the defendant is proposing to build a dam, re- cently. I saw that Tuesday of this week, the 14th day of April, 1908. I visited that at the request of Mr. Starr. Q Mr. MTlliams, state the necessary and essential facts of the canal. (Objected to as irrelevant, immaterial and incompetent.) A. A canal, properly speaking, is an artificial channel 636 for conducting water, that is, if it is a hydraulic canal. The component parts of a canal would be the right of way, the channel out where there was an excavation, the banking and silt where it is necessary to fill to get the grades of the canal. If it is a canal for carrying boats water is an essential part of it. Take the Illinois & Michigan Canal at the site of the dam that is under process of construction by the defendant, the amount of embankment in wudth, that is essential and necessary to the preservation of that canal, is a question a little difficult to an- Rwer just in tliat form. The pro})er embankment on to]> for G87 such work as that ouglit to be 12 or 15 feet. Tliat would he the proper width. The main force of the question as to be- ing a proper embankment depends u])on the way it is built and the material of which it is built. On the outside of the canal it ought to be a slope, which would stand as against the ordinary wear of the weather washing of rains and floods. Now a railroad embankment you understand is about one and one-half to one of good material and a canal embank- ment of the same kind of material would stand at about the same kind of a slope if there was no leaking of the embankment to wet it or cause it to slough. Of course, if it is built out of masonry, you can build it very nearly vertical. You can build it as a re- taining wall. It dejiends on the material used. Q. YTiat you have described then is the outer or the outer tow- ])ath liank of the canal at the point immediately o])posite where the defendant is pro])osing to build the dam, and has actually com- menced it? (Objected to on the ground that the witness has not de- scribed the bank at that point at all.) G38 My answer if you will allow ]iie to state was the general question. Q. What amount of slope, in your judgment, is required for an earth bank on the outside away from the canal at the site of the proposed dam being built by the defendant under the con- ditions obtained heretofore? A. I would say that one and one- half on the outside originally constructed would be maintained fairly well. It probably was built that way and it has perhaps flat- tened out some by wear, wearing down and depositing ijear the foot. I did not measure it. It appears to be about one and three- quarters to one. The’ towpath bank varies from nothing, I should say, to the 18 feet above the ground at the point immediately op- posite to where the defendant is starting to build a dam. I could not answer so certainly, but the bank above the dam filling up for some distance runs from nothing where it runs into an occa- sional little knoll to about 18 feet I should say. Now, whether it is 18 feet right at the dam or not I am not sure. 338 Williams, — Di reel Exam. — Continued. 639 I should judge it was less than that at the site of the dam, I would not he sure of that. That has all been changed. They have been excavating opposite the dam site. There was a great opening or cofferdam in there, and they would dump material all around there which does not allow one to he quite sure of the or- iginal condition right at the dam site. It is above, what I have alluded to, where the bit is that surrounds that cofferdam. The land lying between the river and the canal immediately above and below where they are constructing the dam is a high “towpath about 18 to 20 feet high. The width depends entire- 640 ly upon how it is constructed. The original bank was about 12 feet wide. I don’t think it was about 12 feet at the top. It may have been wider than that, but it has worn away. On top at least it is over 12 feet. Now that was wide enough to per- form the function it was called on to perform at that level. Now that bank is given the slopes that were deemed necessary at that time. Q. Supi30se you started at the bottom of the canal on the edge, at the side next to the towpath, and make the embankment up to the toj) of the towpath, and then take into account the width of the top of the towpath and then the slope on the outside of that, — what width of land or territory is essential or necessary for 641 the preservation of the canal, when it is made of earth and dirt, such as it is along there? A. If the bank was 18 feet high, it would take about 65 feet. If it was 12 feet wide on top, about 65 feet for the base, — that is, based upon a slope of 1 by V} outside and 2 inside. If the top of the towpath of the canal was raised 2 feet further, it would add about 7 feet more; if it were raised 5 feet above this 18-foot bank, maintaining the same slope and same material, a width of 18 feet more would be required. That would be 83 feet. 642 If instead of the outside of this bank being open and ex- posed to the air as it now is and has been, this bank was flooded with water on the outside, the effect of that water upon this towpath would be that the towpath would not maintain the present slope, if it was flooded with water. The fact that it would not maintain the slope indicates that it would wear away at the 339 top; that is, it would narrow the top and flatten out at the bot- tom. The flattening of this bank would, of course be deleteri- ous,, for the same reason that I gave. It would wear at the top and deposit at the bottom, flattening the slope with the same amount of material that existed there, narrowing up to the top. That would be what would take place, and whether it would cause sliding in the bank more than would be caused by wave action and movement would be dependent upon the character of the ma- 643 terial out of which it is made. If this was flooded on the outside of the bank, the effect of the wind operating on the water would wear it away at the water level and below the water level and undermine the material causing it to slough down on the side of that bank. For the preservation of a bank of that kind it is not absolutely necessary that it be put on the bank to begin with, but material enough must be put in it so that it forms its own berm. It would do that ; that would be the tendency. The waves caused by either the wind or current, or both, in time would form along the margin of the stream what is called a wave berm, and washing takes place if it is material that will wash at all. If there was a 644 bank rising immediately at the water’s edge, it would wash the material and break it on the bank, until it did form a berm there. The process, as I could make out from the indications there, which seem pretty clear, is that they take the material as it comes from their pit, included in their cofferdam, and take the rock — the blasted rock — which seems to be soft, sandy rock for the most part, and deposit it on the shoulder of the present bank, on each side at the top of the new deposit of the rock being level with the top of the original bank, that is, the canal bank; that is, widened out to 3, or 4, or 5 feet, varying somewhat according to whether the bank is true or not, giving it a steep slope until it disappears in the slope of the present bank ; that is, until it intersects with it ; that slope which they are giving it, would perhaps be 1 to 1, then that forms a widened bank, perhaps 20 feet wide. On that they built up apparently intending to make the finished bank near the width of the present canal bank on top. Q. If I may suggest, your answer in other language it is this :]40 Wiliams, — Direct Exam.— Continued. that the top part of the hank is being widened without widen- 645 ing the bottom. A. Well, that is the way I was describing it; I was describing how they were doing it; and now the steeper slope being done of this top material, results in a failure for any material to reach the toe of the original slope. It is build- ing a bank on top a bank with a less slope on top of an old bank with a greater slope, making a superincumbent mass there. I don’t think a bank raised in that manner could endure or be permanent. The quality of the rock that is being* used for the raising of that bank is soft rock. It is dumped in promiscuously, just as it comes from the excavation. I think it will disintegrate by the weather. It would be a rapid disintegration for rock,— not for earth perhaps. They are widening the towpath bank on the inside of the Illi- nois and Michigan Canal, as I described, from the edge of the towpath into the canal prism. Of course just what the slope is be- low the water, I don’t definitely know, but they are giving a great- er slope to it than the original slope at the present time. The 646 direct effect of what they are doing then on the canal itself, — that is the channel, — is to narrow the prism of the canal, and in order to make this towpath bank stand on the canal site of it — the water side of it — it is necessary to widen it there, and thus fill up the canal in part, if they follow their present method. I saw the Kankakee Feeder while I was down there the da> before yesterday. If the cresT of the dam that is being constructed should be at a height of 4 feet below the level of the top of the water in the canal, as the canal is there now, — the feeder, that is the aqueduct as it was originally in there, if it were in place now, would be submerged, — a portion of it at all times, and prac- tically submerged; the water would rise practically at the top at high water. It would not be possible to restore that feeder so long as that dam remained, with the flowage existing. If the crest of the dam being built is at an elevation of — 73.2, Chicago datum, and the bottom floor of the aqueduct of Kan- 647 kakee feeder is — 74, Chicago datum, — upon that hypothesis the feeder or aqueduct would be below water, and could not be maintained if the flow was according to these figures. I re- member a number of years back, where the water of the Des- plaines Biver as it came down, near to the Chicago Biver, went, which way it was discharged prior to the building of what is known as the Ogden Ditch. What yon usually term the Upi)er Desplaines Biver, — that is the Desplaines Biver from the sharp bend that it makes near Sum- mit below Biverside, in the normal condition, before anything was done out there, discharged both ways in flood. Whenever the river was in flood, or very much in flood, or a comparitavely small flood, it would discharge westward through the bed of the Desplaines Biver, and eastward through Mud Lake and into the West Fork of the South Branch of the Chicago Biver; at low water in the normal condition that it was in, it would discharge only west- ward through the Desplaines Biver channel. The lower Des- 648 plaines Biver channel, southwest, there was a ditch cut that modified it, that modified the flow of the river by what is known as the Ogden and Wentworth Ditch. It was the exten- sion of a comparatively straight line of the West Fork of the South Branch westward and finally connecting with the eastern arm of the river near Summit ; cutting so that it turned the water of the Desplaines Biver at all stages into the Chicago Biver. After that was done, or at the time it was done, it had the effect of nullifying the operation of the Illinois and Michi- gan Canal, which in the early ’70s, I believe it was, had been deepened for the purpose of changing the current in the south branch of the Chicago Biver. It did do it to a certain extent. This water being drawn off of the Desplaines Biver, and discharged into the south branch of the Chicago Biver stopped the flow according to the various stages, stopped it entirely, or partially, or reversed it, according to the conditions of the south branch and the Chicago Biver. 649 So the City of Chicago in order to restore the original con- dition, built a dam at the Desplaines Biver, cutting the water off from entering the Ogden and AVentworth Ditch, until it had reached its original normal height. It was not shut off entirely, it was shut off at the long stages. The dam was con- structed under my supervision; in fact, I planned for it, — super- vised its construction when I was assistant city engineer. In reference to the book entitled ^‘Fifteenth Annual Beport 342 ^Yi Ilia ms, — J) irect Exam . — Coi i tinned. of the Board of Public Works for the City of Chicago, 1875; pur- porting to he for the fiscal year ending December 31, 1875; and purporting to be on its face, as of date March 1, 1876; addressed to the City Council of the City of Chicago,” — I wilT say Ihat I was the assistant city engineer at the time the volume was made. I think I assisted the city engineer in his report. I don’t know as there is anything in here of my own wording. The statement on page 17, as follows : '‘The Kivek: The condition of the river during the last summer was a source of great annoyance to the public. Sev- eral causes have operated more than formerly to make the main stream and its branch difficult to keep in good condi- tion. Among these are the increased sewerage of the city, which is carried to the river, and the quantity of water emptied into the canal by the Ogden and Wentworth Ditch from the Desplaines Biver. A dam is being constructed at the entrance to this ditch, by which it is believed that the city will be so able to control the fiow from the Desplaines into the river as to secure a larger discharge from the river hereafter. Thus and by means of the Fullerton Avenue con- duit, it is hoped that the river can be kept unoffensive to health,” — states the condition of the river at that time that the work was being done, at the time I was assistant city engineer. 651 Thereupon complainant offered the said passage on page 17 in evidence. (Objected to as incompetent, immaterial and irrelevant.) In the volume entitled: "Annual Eeports of the Department of Public Works, Chicago, 1876, 1878,” the statement in the Com- missioners’ report, beginning on page 19, is as follows: — "The Rnmu: Closed without completing any improve- ments which have been designed for the purpose of cleaning the river, on account of legal obstructions to the erection of a dam across the entrance to the Ogden and Wentworth Ditch. The contract which was awarded for doing the work has not been carried out. Yet an amiable adjustment of the difficulty between the parties interested is looked for at an early date, when the improvement will be at once completed. This will enable the deepened Illinois and Michigan Canal to perform its part of cleaning the south branch of the river.” states the situation as true, on that date, May 1, 1878, — the 652 way I remember it, and I was in the employ of the city as assistant engineer and in control of the work at that dam at that time. On page 132 of the same volume in the report of the engineer to the Commissioners of Public Works, under date of Jan. i, 1877, in which the following occurs: — ^ Conditions of the Eivee : The same objectionable state of things in reference to the condition of the river that was described in the last annual report continued to exist last year, and from the same cause, — that is, the large quantity of water which flowed from the Desplaines Kiver into the Ogden and Wentworth Canal; and through this and the west fork into the south branch of the Chicago Piver. The liene- ficial effects, otherwise naturally expected and formerly ex- perienced from the deepening of the Illinois and Michigan Canal was neutralized by the feeding into the canal largely, and sometimes wholly, with the Desplaines water, thus great- ly obstructing the flow of the drainage of most of the city through the canal. It is believed now that such an under- standing with all the parties interested has been arrived at as will permit the building of a temporary dam at the height of the Ogden and Wentworth Canal, sufficient to restore the south branch to its former condition and also allow experi- ments to be made to show how high the dam may be raised permanently without injury to the just rights of any.” — The language read represents the condition at this place and at that time. In the same volume, the report of the Commissioner of Public Works for the year ending 1877, on page 20, is found this lan- guage ‘‘The Kiver: The expenditure of $1,500 for adding some two feet to the height of the dam across the entrance to the Og- den and Wentworth Canal, has proved successful in prevent- ing the waters of the Desplaines Kiver from flowing into the waters of the Chicago Kiver; and in turning the current of the south branch into the Illinois and Michigan Canal, there- by greatly perfecting the drainage of that portion of the city south of the main river ; and rendering the waters of the south branch comparatively odorless and free fyom offensive impurities.” — which statement represents the condition of affairs that existed at that place and at that time. 654 Keferring to page 186 of this volume which purports to be a report of the Commissioners of the condition of the river as of December 31, 1877, as follows: “Condition of the Kiver. Since the building of the dam at the head of the Ogden & Wentworth ditch early in Janii- 344 Williams, — Direct Exam. — Continued. ‘^ary, 1877, the condition of the south branch of the Chicago Kiver has greatly improved. The dam is located on the east line of Section 12, Township 38, Range 11, 1,160 feet south of the N. E. corner of the section where the line crosses an arm of the Desplaines River with which the Ogden & Wentworth canal has connected. It is temporary in its na- ture being composed of a row of sheet piling supported on the lower side with round timber piles and filled on the upper side with earth. Owing to the peculiar and unreliable character of the ground into which the sheet pilings were driven the sheets between them proved to be very imperfect and leaked badly. To prevent a reoccurrence of this it is recommended that a row of longer tongued and grooved sheet piles be driven several feet from the old row or two rows being tied to- gether to prevent spreading and the interrhediate space filled with earth. By this means the dam may be made to do service for a number of years without any material repairs. The top of the dam is about 11.8 feet above Chicago city 655 datum. During the greater part of the time no water flows over its top, hence the water from the Desplaines River is excluded during the season of the year when its presence is seriously objectionable.’’ The above statement represents correctly the condition at that time and at that place as I remember it. Thereupon counsel for complainant offered these several pages from the said volume in evidence in connection with the depo- sition. (Objected to as incompetent, irrelevant and immaterial, and no sufficient foundation.) Looking at the map which hangs on the wall here labeled “Rand McNally’s new standard map of Chicago, scale two and one-half inches to a mile, copyright 1902, Rand McNally & 656 C.”, the Ogden ditch began approximately at 48th street at the extreme end of the west fork of the south branch which is coincident with the red line marked on the map “city limit” just where it crosses below what is called the Hawthorne Race Track indicated by the lead ]:)encil mark “a” on said map. Approximately in that vicinity the Ogden & Wentworth ditch was begun and carried to the southwest as shown on tlie map here. It is marked “Ogden ditch” on the map, and strikes the line of 47th street at a little less than one-half mile east of liar- lem avenue, which is a range line. It tlien follows just south of 49th street on Harlain avenue. It was then cut in Harlem avenue which would be Harlem avenue if it i)rojected. There was no street there southward for a distance of about 1,000 feet, striking the arm of the Desplaines Kiver as it then existed. That is sliown on Section 12 of this map. That re])resents the situation pretty correctly. On that line of Harlem avenue and where the line 657 of Harlem avenue crosses that arm of the river was the space where the dam was i)uilt and ])erlia])s just a little west of it so that the ditch as constructed prior to the building of that dam and the Desplaines River as it then existed connected and made the continuous water course. The words upoii the map in the immediate vicinity between the dotted lines “old river 1)ed” indicate that that was the main river bed as it existed ]u*ior to the work of the Sanitary District. The Sanitary District made a new channel for the river from a ]x)int north and west, mostly west, of the Ogden dam and changed the course of the river turning it out of this old bed entirely. The river indicated on the map where the words “Desplaines River diversioii” re])resent the new channel that I have spoken of. The channel began at the Doiiit vrhere the Santa Fe Railroad crosses the Desplaines River. The area» of land on each side 658 of this Ogden ditch and between the points “a” and “b” were known, when I first became accpiainted witli it, as Mud Lake. I think they had cut through connecting tlie original Mud Lake with the west branch and draining at Mud Lake ]>retty much before I was acquainted with it. It showed where it was. I saw the depression and soft land upon which the vrater used to stand in a condition showing that it was tlie foiiner bed of i\fud Lake. Tlie Ogden & M^entworth ditcli runs tliroiigh that miginal bed of the lake. And it was there when I first ])egan to see the country, and the bed of the Desplaines River ran through this Ogden ditch into the south branch unless it was drained off by the Illinois and Michigan Canal, that is turned back, that is it would run into the south branch and then here in Section 9 659 on this map wdiere there is represented a narrow ribbon of water extending first southwardly and then southwestwardly which is labeled “Illinois & Micliigan Ckinal” at a ])oint just 346 Williams, — Direct Exam, — Continued. east of Ashland avenue about a block east. The red letter which is put at that point on the map by counsel for complainant was the point at which the Ogden ditch fed into the south branch and that point was the Illinois and Michigan Canal feeding out of the south branch. Sometimes the Ogden & Wentworth ditch neutralized the Illinois and Michigan Canal so that it sent out a strong current into the lake. That was one of the difficulties I had to contend with that led to the organization of the Sani- tary District of Chicago and the construction of its channel. That is indicated on this map in Section 30 by the point marked by counsel with the letter I find that map represents the con- ditions correctly as I am familiar with them. Thereupon counsel for complainant offered the said map in evi- dence in connection with the deposition. (Atlas p. 3952; Trans., p. 6574; Abst., p. 1926.) 660 (Objected to as incompetent, immaterial and irrelevant.) Q. Mr. AVilliams, just tell us now in a general way, take it by periods so as to separate it one from the other, what the conditions have been as to the relation of the Desplaines Kiver to the waters of the south branch and Lake Michigan going back first to what they used to be long prior to that time as indicated by the logical and historical data, if you are familiar with it! (Objected to as incompetent, irrelevant and immaterial, and calling for an opinion.) A. The logical evidence is that the Desplaines Eiver and Illi- nois Eiver below were at one time a great outlet for the lake pre- sumably at the close of what is known as glacial period and the valleys of those rivers show that it has been an immense stream away beyond any that exists to it in any part of the country, I mean the Desplaines. Subsequently by the leaving of some sand to the east or the lowering of the crest of the earth at that 661 point or an upheaval of this ground Lake Michigan was shut out from the Desplaines to the Illinois. During the various times these banks with various levels that have formed along the lake beginning at the lake and going along as far west as LaGrange, those were beaches formed, in the forming of which the u])per Desplaines was formed occupying a space between two different levels. They might be called dunes and they found its outlet prob- ably, at least at one time, probably mostly into Lake Michigan. Instead of following the channel as indicated on this map that yon refer to, the Eand-McNally map, this way it had its outlet through Mud Lake and that way (indicating on map). At one time, of course, it discharged both ways. As the silt was washed down by the upper Desplaines and overflowed into the weeds and grass it deposited that silt and back up into the Desplaines and 662 around its eastern arm and dike. Like alluvial streams they are always higher close to the river than they are back from the river and that is true here. It was gradually shutting itself out from the Chicago Eiver and the Ogden & Wentworth ditch was cut through that grade that had formed. Beavers may have helped by throwing up dams, anything like that, causing deposits, and as the water gets out of its channel it causes deposits any- way. From the time when the river had opened its outlet into the Illinois and clear up to the time when I constructed the Ogden dam the Desplaines Eiver made a certain amount of discharge into the Chicago Eiver so far as I knew about it unless it might have been a very dry year when there were no floods, and in the higher floods the whole area occupied by the ditch and by the river at the bend there was flooded many feet deep. The water was sufficient for small boats to pass from the Desplaines Eiver into the Chicago Eiver and out into the lake. Boats drawing 663 several feet could pass out. 664 I can not tell you the exact year when the Ogden ditch was constructed. It was between, I think, 1869 and 1874 or ’5. It was after the deepening of the Illinois & Michigan Canal. They may have dug a part of it part of the way up to Mud Lake in the ’40 ’s, but they did not tap the Desplaines Eiver at all that time. There is an old ditch, I don’t know whether it shows on this map, another ditch entirely, but that that tapped the Desplaines Eiver was not built until after 1870. I did not state that until after 1870 the waters of the Desplaines Eiver did not flow into the south 665 fork of the south branch. It did not flow into it at low water. It did not flow in until the water came up so it poured all over the prairie. It overflowed from the east and south so that during the period of high water a great deal of water of the Desplaines Eiver flowed into the water of the south fork of the south branch 348 Willuuns, — Direct Exam. — Continued. tlirougli Mud Lake and those low lands. I should think it was only two or three years after the ditch was constructed before the dam was built. I could not tell that because my attention was not drawn to it, and in fact I had nothing to do with the Sani- tary Commission until 1872 and I know my earliest requirement now with reference to that matter was that they began to com- plain about the bad condition of the river caused by that ditch. That was before I knew of any of the circumstances at all. I am not sure how long that ditch had existed at that time, only I know it was quite recent. That I know from the general knowledge 66G that existed and from the appearance of the banks, the ma- terial show^ed when I first saw that ditch that the bank was a comparatively recent bank. That ditch was constructed under no authority except the land owners. They just went in and dug their ditch on their land. Primarily the original ditch was to drain off the water from Mud Lake into the Chicago Eiver and get the water down. And then they pushed it along five or six miles and of course drained it a little better, and of course I knew what the general charge was, the reason why they tapped the Pesplaines Eiver. I knew what that was, but that was as far as I knew. It was said that they tapped the river to drain out the water in there and poured (1G7 out that ditch and make it dry. The ditch had been con- structed before the river was tapped. The purpose of the ditch was to drain the lands through which it flowed. IVell, I don’t know how far they expected to render those lands valuable. It merely made it so they could cut the wild hay on it. The Ogden dam was built across the place where the ditch tapped the river in 1877. The ditch tapped the river a few years before that. I never went down below so as to see how much water was dowino' in the ditch, but in low water I think it virtually did not flow into it at all. Boats could have been navigated in the Og- GG8 den ditch. I did not testify that they ever had been. I should think the Ogden ditch was 20 or 25 feet wide. Since the Ogden dam was constructed the water continued to flow into it when it went from the dam and since the Sanitary District carried out their work out there it is seldom that any water flows into it exce])t local rain fall. It then flows down into the Chicago Eiver when it :u<) overflows, which is down about the spillway. On A])ril 14th, when 1 went down to Dresden Heights, Mr. Kramer and Mr. Lyman H. Cooley were with me. G69 We went from Chicago to Joliet and then went down in an aiitomohile and got as near to it as we could get and walked the rest of the way. We got down there just before noon. We stayed there, I should think, about two and one-half hours or three. We ran over the property and walked up the canal hank for something over a mile, I should think, above the dam. We walked below the dam for a half hundred feet only out into where the waste material was. We took no actual measurements of- the canal bank, just looked over the ground. I knew at that time, from my general knowledge, what the ])lans were for doing the work only so far as I was shown on the ])lat that was exhibited, which was one Mr. Cooley had in his possession as I remember it. 670 It showed what purported to be the location of tlie power house and of the dam and of the gates and overflow. I don’t think the plans showed as to what the company proposed to do with the hank or how it |)roposed to widen the tow i)ath. T got that from what was actually done. Part of it seemed to he about completed as I judge it. I would not say that I knew any- thing was completed. I only know what they had done at the time I was there. Q. You did not know for instance at that time that the com- pany contemplated only raising the tow path about two feet? A. Yes, I did, that is, I judge say, from two to three feet according to the height of the bank as it now exists, that was evident to me that they were raising it about five feet above the water 671 in the canal as it existed when I was there, there were evi- dently grade stakes where the raising had not been done. I don’t know what is contemplated by the company in the way of protecting that bank after it is raised. It is not a fact that the outside slope of this canal hank at the point where the dam is being constructed is lined with dimension stone. There are some places there where it has been riprapped or sort of paved with small stone. Well, if the outside slope outside of the canal 672 had l)een built with stone it has all been obliterated and cov- ered over with earth. It has got an earth slo]>e now. There 350 Williams, — Direct Exam. — Continued. were places where there was stone that was visible bnt for the most part there was not. It was not what engineers or builders would call dimension stone. There were places where it was paved, that is with the stone where the current sets in against it. There were places where they had paved, or put in riprap, to protect the wash. I say that that stone was not and could not be dimension stone. I examined the bank for about a mile, except where it had been covered up with the material that had been deposited there. There was, I should think, about one-cjnarter of a mile that was 673 covered up also at the top. It was covered up beginning at the dam site and going up stream. For one-qnarter of a mile up [ could see what it showed for the lower part of the slope. The other portion was covered with the material that had been taken out by this excavation, new material. I went on above where the new material had been deposited. The new material had been deposited on the side and top of the bank raised for perhaps 1,000 feet possibly a quarter of a mile, then for another stretch of a number of hundred feet had been deposited on the side of the slope, the top of the slope besides and even to about the original tow path leved. I think my examination was such as would enable me to know that the bank was not constracted right from its base up to the top of the tow path originally with dimension stone laid one on top of each other. It was paved in places when the water was low in the river where it might strike in on the 671 bank. There was a great part of the way where there were trees going up the slope. There was more or less paving along there up to the county line of Grundy County. It was tilled over but in here where it was not too much tilled I could see there was more or less paving in there (indicating between the points x and y on the map) for a distance of about 1,000 feet from the location of the dam up stream. It was so covered it showed the stone for a good deal of the way along there. The other part of the bank was covered with freshet material. In places the stone showed. 675 It might have been paved all the way. It may have been- covered over with dirt but there were places that I saw the paving. The impression I got from the bank was that they had 1 ‘iprapped there and paved wherever it was bare, and in some of that rock it worked down and you could see it at the toe, and there are places it was mixed in witli the dirt and covered np, you could not see it at all. C ross-Exa m i) i a ti on. Q. If it turns out to be a fact that that hank is all built up with dimension stone from base to the top, then your testimony with regard to the action of water upon it would not apply, would it? A. I think it wmuld because there was a good deal of 676 that bank that was not protected with stone at all. Q. I am asking you on the presumption that it is, that you are mistaken as to that? A. It depends on how well that is done, I don’t know. If it is as it appears why it would not protect it. Q. Do you undertake to say that when that bank was buiU originally it was not a proper bank for the purposes for which it was designed. A. No, I did not say that. That bank seems to have answered its purpose very well. I don’t know that during the flood season the water of the Des- plaines Eiver comes up on that bank at a very much higher level than it would come if this praposed dam were put in. I don’t think that is true. I know something about it. I saw marks of the flood time when I was there. They came up quite a distance, I should think, within five or six feet from the top of the bank. 677 The reason I answered you that way was this, that I don’t know anything that you could do with the dam that will lower the flood waters. Anything you may do will raise it but not lower them. I know how high I was told the crest of the dam was going to be. I think it was minus 74 feet below Chicago datum. The action of the water in flood time against the bank would not be more serious than the action of the still water formed by the construction of the dam. It would not be still water. The bank would be destroyed with the affect of wave action and winds and being kept constantly saturated as the bank is at present 678 constructed and as a new portion has been constructed up to date. I have no knowledge what the company intends to do to protect that bank. It is possible to so protect that bank that the construction of the dam and the formation of the pool above the dam would not endanger the bank in any way. I have never seen the contract with the Canal Commissioners. 352 Williams, — Cross-Exam.— Continued. Q. You think, though, that it would be quite feasible to put in the work there in such a way that the bank would not be injured? (Objected to as not cross-examination.) A. Oh, yes, if you get enough material there of the right kind and put it on the slope you could protect it. The width of the canal varies a great deal. _I never measured it. Eight opposite G79 the dam the canal narrows up and widens out in places. At the point where I said the earth was thrown over on the inside bank of the canal it is wider in places than the standard at the surface, I don’t know that it is below. By drawing the water down in the dam the aqueduct across the river there could be restored. What I meant to say (direct examination) was that if the dam was kept up to the height of the crest that it ^ould interfere with the aqueduct. G80 Q You mean that if it were kept up to the height of the crest the surface of the water would be above the present top of the pier? A. Yes, that is right. Counsel fok Complainant. I object to the last question because the question asked in the direct examination, to which response was made by the witness, was in substance that if the water was kept flowing to the crest of the dam wdiere would the feeder be with reference to the surface of the water and then whether it could be restored all upon the hypothesis that the wmter was kept at the crest of the dam. I only know how the old aqueduct was built from the appear- ance of the old piers that still exist. The aqueduct was supported by the top of the middle portion of the piers, not the extreme ()81 top at the edges but in the middle of the piers, the box rested on the middle of the piers. The top of the middle part was not higher than the top of the aqueduct. It was higher than the bottom of the aqueduct. A pier has a small width up and down stream, I don’t know just wliat it is, but on each extreme edge of the middle part of the pier there was some masonry carried u|) perha])s as high as the top of the aqueduct. Between those was sort of se])arated piers formed on the main piers but the to]) of the middle part of the pier was where the aqueduct rested. Dur- ing a flood season when the old aqueduct existed there the water would come up on the a(iueduct proper, I don’t know just how high. 682 As to whether the feeder could be maintained there across the river depends entirely upon the level of the water to main- tain it and that would depend upon how much water was let through the outlet. It would be quite possible to let a sufficient amount of water through the dam to keep the aqueduct out of water all of the time if the water did not get up to the crest of the dam. After the dam is constructed and the water should be at the level of the crest it would be only up to the toe of the bank, that is part down slope. The level of the pool that would be formed by this dam would be below the point where the tow path is being raised, I 683 mean the water would be up against the toe of the material that is put in there. The water would not be up against thi^^ 684 part of the tow path that is being raised nowq but would be several feet below it, that is several feet below the old tow path bank. R e-direc t Examin a ti on. If the crest of the dam is built at an elevation 73.2 Chicago datum and the bottom of the aqueduct is minus 74 Chicago datum, it would flow up into the bottom of the aqueduct, and if the crest 685 of the dam was 73.2 and the aqueduct 73 minus, it would be .8 of a foot deep. Suppose that the flow of the water from the dam was six feet deep the aqueduct would be submerged 6.8 feet. I stated in my cross-examination that the bank above this canal at places has trees growing on the side of the bank. It would not be possible for the character of trees I saw growing there to grow if the bank had been either riprapped or constructed with dimension stone. The size trees that were growing there, I should think, would need two or three feet of earth to grow in. Most of the way along both directions from the side of this dam I saw trees growing on the side of the tow path bank. The stone 686 that I saw piled on the banks were thrown in with some regu- larity on the outer line of it. They were loosely thrown in, they were not set in by hand, they were not hand work. Of course, the cotfer-dam was full of water and I could not see the bottom of the stone in there, but there was no other place 354 for the stone to come from thaf I knew of. To construct the bank or tow path of the canal so that water might be put in outside of it and still the canal be protected it would either be by heavy riprap letting that riprap extend down under the toe of the bank or it could be down with perhaps a lighter work if they had the right kind of stone by getting a proper footing at the toe of the bank and building them up, paving them like you would pave a 687 reservoir. It might be cement or it might be dry, but that would have to be carefully hand laid. It would have to be different kind of stone from anything that was there. It would have to be a sort of a picked stone such as rubble stone or dimen- sion stone. Suppose the water was kept at the crest of the dam and there was three to three and one-half or four feet of water in the river above the crest of the dam or going over the dam that water would reach the new part of the tow path bank as it extends down on the slope. AVilliam Kramer, 688 a witness in behalf of complainant, testified as follows : Direct Examination, My name is William Kramer. I am forty-five years old. I live in Chicago and have lived there since 1892; that would be about sixteen years. My occupation is that of civil engineer and surveyor. I have been enaged in that line of work since I was fifteen years old. That is twenty-nine or thirty years. I have seen the site of the proposed dam that has been par- tially constructed by the defendant, just a short distance above ^ the mouth of the Desplaines Kiver. I have viewed that whole region for a short distance around about it, that is, the Illinois & 689 Michigan Canal and the river and the proposed dam. I last saw it on Thursday, the 14th of the present month. Mr. Bene- zette "Williams and Mr. Cooley were with me when I viewed it. I went down there at the request of Mr. Starr, for the purpose of examining it and inspecting it and learning the situation. The canal bed proper and the two banks are the necessary in- gredients or component parts of a commercial canal. The banks of the canal are necessary to hold the water in the canal. I exam- ined the bank on the east side of the canal next to the Desplaines Eiver, at, and near, and about the site of tlie dam joeing constructed by the defendant. 690 The top of the towpath, that is, the way I rememl)er it, is 84 Hennepin datum, and I think that the day we were down there, the river was about 61 Hennepin datum. That would make a difference of 23 feet between the top of the towpath and the water in the river. The height from the side of the towpath bank down to what appeared to be the ordinary level of the side at the foot of the bank, varied a great deal. Take it below the dam, that is, I mean along the dam to be constructed by the Economy Light & Power Company, below there, the canal bank, that is the toe of the canal bank, on the edge of the water, are identical; right at the place where the dam is being constructed, I should think that it was about 18 feet above the toe of the towpath. The toe that I refer to is the bottom of the bank. 691 I think the towpath of the Illinois & Michigan Canal is l)e- tween 12 and 16 feet in width throughout its length. I mean the towpath itself, the top of the bank. That would be 14 feet, and then it would take a slope of two to one on the bank nearest the river ; if the bank is 18 feet high, you would have 36 feet more for the bank, which would make in all 60 feet. That would be from the edge of the towpath, almost from the water’s edge of the tow- path, down to the bottom of the bank of the toe of the slope at the power house. A greater base would be required for sustain- ing this bank then than just the base of the towpath bank. You have the slope in the canal proper. There is the bank from the edge of the towpath down into the water, that is, to the bottom of the canal. On the assumption that the water is 4 feet deep in the canal, there would be left on that side of the bank, 4 feet in the bottom of the towpath. The depth of the water in the canal 692 would be 4 feet, and 2 feet for the bank. That would be about 6 feet and there ought to be a slope of about three to one; that would be 3 times 6 or 18 feet on that side. The other side was 50 feet. That would be 68 feet. Ordinarily, there would be rec[uired some additional width on the outside of that bank as a base or support of that bank; if the bank is properly constructed, there should be a berm. The width varies. It should not be less 356 Kramer, — Direct Exam. — ‘Continued. than about 6 feet, and then it should slope about 3 to 1 from there on. I assumed here in giving the first figures that we would take a uniform slope of 2 to 1. It is my judgment that, for that one bank, i^roperly constructed, the minimum amount of land required in which to construct the towpath bank and support it, in the condition that it is, at and near the site of the proposed dam of the defendant, is 89 feet. If this tow^Dath bank was 693 raised 2 feet above the height that it has been for years, 16 feet more additional width would be required to sustain the towpath in that enlarged condition, keeping the top of the tow- path the same width as it is now. In my judgment, if the tow- path bank of the Illinois & Michigan Canal at the site of the pro- posed dam, were raised 2 feet above the height at which it has been heretofore maintained^ the minimum width of land required for the jDroper maintenance of this canal, would be 105 feet. If the water was caused to be held back by the dam that is proposed to be built by the defendant, so that it flowed up on that side of this bank, ’the effect of the water on the bank would 694 be that it would wash the bank. That would hurt the bank unless it was properly constructed. It would hurt the bank on account of the actions of tl^e current, which will be quite strong on that side of that river, because it is the deepest part of the river there; and also the action of the waves would certainly have the effect of cutting in a berm into the canal bank and eventu- ally, if the bank was not properly constructed, the water would eat into the canal bank and destroy the towpath. If you would throw a head of water up against this bank in its present con- dition, the etfect would be that it would cut the berm in the 695 bank that I spoke of. The way I took in the situation Tues- day, I thought that this dam, which is started to be constructed across the Desplaines Eiver, and across the land between the river and the towpath, crosses it nearly at right angles. It may incline a little bit over to the southeast, so that the angle between the dam and the towpath will be less than 90 degrees. If the bank is not riprapped at least 50 feet up stream, that is, by riprapped, I mean paving, actual paving with big stones, it would certainly eat away the canal bank, that is, if you would throw water on it with a dam up to 70 or 80 feet Hennepin datum. 357 the water there in the reservoir would go above tlie present riprap. The riprap as it is now, only extends about half the way up. I suppose it was for the protection of that particular part of 696 the bank against high water. The character of the stone that I refer to, that should be used there would be dimension stone, or the same kind of material. Of course all stone, when it comes out of the quarry, there is a face which you can use for the top of the riprap. You would not have to make a dimension stone out of it. What I understand by dimension stone is that it has been made into a square stone. I think the stone that has been used there was limestone. I would not know where it came from, but I suppose it came from Joliet, from the quarries there, thougii it might come from across the river, there being quarries over there. If water were kept up to the crest of this dam, and caused to flow against the side of this towpath bank up to within anywhere from 2 to 5 or 6 feet of the top of the towpath bank, it being raised, say 2 feet above the old bank, the etfect would certain!}^ be hurtful, because the water would eat away the towpath; that is, the current and also the action of the waves caused by a strong wind like we had yesterday, for instance. 697 I observed where the old Kankakee feeder had been erected. If water was held back by this proposed dam, the question whether or not the water would overflow the bottom of the aque- duct, depends upon the amount of water which will be used, will be going through the wheels at the power house. If we assumed that they used 400,000 cubic feet per minute of the amount which will go down, which is going down now, I have not kept track of it lately, I should think that the top of that dam would be about 73.8 Hennepin datum, minus 73.8 Chicago datum. I mean the spillway would have to be put at that level before it would over- flow, and take it from 151.8 — that would be 73.8 Chicago datum. At that elevation, if the water goes through the wheels there, I think there will be no water flowing over the dam, and at that elevation it would just about touch the bottom of the water 698 in the feeder. Upon the supposition, that instead of the water being only up to the crest of the dam, that there was any- where from 2 to 4 feet of water going over the dam, then the 358 Kramer, — Direct Exam. — Continued. bottom of the feeder, or Kankakee feeder, would be in the water. It would be in the water just the amount which would be flowing over the dam. That aqueduct could not be maintained under those conditions, nor could it be restored under those conditions, unless you take out the spillway, the dam next to the power house. I suppose tliej^ would have a spillway. I have been acquainted with the Desplaines Eiver since I first 1)ecame connected with the Sanitary District of Chicago in Feb- ruary, 1892. That is sixteen years. I came in under Mr. Benezette AVilliams and Mr. Cooley was trustee. This dam being built, as proposed, the Kankakee adequct, in case of high water, would (>99 be submerged to the extent of the high water. This high water would make the conditions of the towpath worse than it would be under ordinary conditions. By worse I mean greater destruc- tion of the bank, and it would probably overflow the bank, that is, the present bank, might just come to the top or a little higher. And in that way the water would pass into the old Illinois & Michigan Canal. As to how deep the spring floods would carry the water over the top of the dam at 73.2 Chicago datum, 700 if you have that spillway in there and you let this water come down the river, it would increase the height up to about 6 feet more, so that I should think, it would be just about — it would just about bring it up to the elevation of 84 Hennepin, which would be about the top of the towpath. Now I would like to explain this answer. If you have an ob- struction there, you have the power house, and you have a spill- way, and the top of a spillway is 73.8 Chicago datum. If you take that amount of high water which came down in 1892, and also a few years ago when it was still higher, by several hundred thousand cubic feet per minute, if you could not afford relief at the power house in the shape of gates, water gates or tender gates, you would certainly overflow that canal bank. If you don’t do that, if you don’t use the gates there, that is, if you use the gates, you will have no head, so you would have to close down the plant. As to how Hennepin datum compares with Chicago datum, the figures I have always used, and which were given to me ])y the Sanitary District some years ago, when I was 701 in charge of the woilv at Marseilles, was 15.8 below Chicago city datum. I don’t think it has been changed since then. I know that Mr. Beiiezette Williams was chief engineer of the Sanitary District of Chicago in 1892, hecanse I came to Chicago and applied to him for work. I saw the work that has been done down there. They are en- larging, that is, they are raising and enlarging the top of the bank in some places on both sides; Imt it seems they are tilling np the Illinois & Michigan Canal, up to the beginning of the deep water in the canal. That will certainly have the effect to fill in the canal np to that rock which is l)eing ])laced there. I know that to be a fact. i\[y experience has been that, nearly the same rock that we had in Marseilles, and also at Williamstown, dis- integrates very fast wlien it is exposed to the surface. I 702 don’t think that what has been used there, for any preserva- tion of the bank, ought to be called a rock. It is what I should term a shale. That will certainly disintegrate within a year or two after it has been exposed to the frost, and heat of the sun. Ihmestone rock will not disintegrate very fast. It does, but it takes a number of years. But this rock would only take a few years to disintegrate. I have noticed the construction of the elevation of the tow- path as they have been doing it there. As to whether or not that elevation is resting on the base of the old towpath, or whether the base of the old towpath has been widened to accommodate that, it seems that the slope has been steepened on the river side, I should think that the present slope there, I mean in some places, I would say most of the places where they have thrown rocks on the riverside of the bank, is one to one, or less than one to 703 one. It did not look to me as if they widened the base of that towpath, in order to support the higher elevation. It seemed to me that the new filling just about struck the toe of the canal bank. Taking a line from the top of the towpath bank as elevated to the bottom of the tow]3ath, the slope would be much steeper than the slope of the old towpath bank. 704 Cross-Examination. I constructed a canal at Marseilles. It was the canal which feeds the different flumes of the Marseilles Land & Water Power Co. The canal is about a mile long. We constructed three canals 360 K ra mer, — C ross-Exam . — C o n tinned . there, one leading into the Crescent Mills, and one leading into the box factory, which is owned by the National Biscuit Company, and one going down to the pulp mills. The pulp mill canal, the way I remember it, is nearly a mile long, and the Howe & David- son is about one-half mile long; that is, Howe & Davidson — I mean the Biscuit Company Trust canal, and the one leading into the Crescent Mills is about, say a quarter of a mile long. These canals were built as feeders of water to the various works. The object is to carry water, but not for the purpose of navigation. As to building any high bank on these canals, my experience has only been with the ‘Chicago Sanitary District in that respect, 705 as I worked for them about seven or eight years. I built some high banks in those three canals at Marseilles. I should think that bank was, in some places, all of twenty feet high. I remember the dimensions of it. The bank is irregular. It is — the nearest part of it — that is, the way I remember it, about twenty or twenty-five feet on top, with two side slopes of 1\ to 1 on each side. On last Tuesday, April 14th, we got to Dresden Heights about noon, and left again about three o^clock. We took our dinner down there at the Towpath House. "We got back to Joliet about a quarter to five. I went down in an automobile and at Mr. 706- Starr ^s request. lYe had a conference here at the office be- tween Mr. Starr and Mr. Cooley and myself. We did not take any actual measurements down there; just looked over the ground. I did not guess what the height of the bank was; I knew that to be a fact, the height of the bank. I know what the height of the bank is at that point, because we have run levels all over that part — I went and talked with the parties who made a topo- graphical survey down there. That was two years ago this sum- mer, in June, 1906. This survey was made for Mr. Munroe. I remember from that time, two years, exactly what the height 707 of the bank was at that point. The reason I remember was this: Because the water at the mouth was just 60, and it is a little higher now than it was when we took the measurement — a measurement like that I could remember. That enables me to remember what the height of the bank is, because I can tell about the difference of the level between the water surface of the river 361 and tile bottom of the towpath; that s, the toe of the slope. I remember that to be about 6 feet. When I visited there on Tues- day I should think the water in the river below the dam was 61 Chicago datum. I could tell that by the ground it covered. I mean 61 Hennepin datum. I did not ascertain that. I guessed at that — I know that country so well that there is 708 not very much guessing about it. I know it very close. I told you before that the plan upon which the power house is being constructed, or part of the power house will be con- structed, is quite familiar to me, because we have spent four days right there taking soundings over this place. That was in 1906. I did that work for Mr. Munroe,- for the purpose of making a topographical map of that section. No, I don’t think he was mak- ing it just for fun. Of course, these are things I would not like to talk about here; it is a matter of the past. I was in charge of that party making the soundings and the topographical sur- vey. I suppose I was making that under Mr. Munroe’s employ- ment, with a view to a construction of a dam and power house 709 at Dresden Heights. I don’t know whether it was or not, be- cause I did not make the plans. Previous to the time when I made the survey, I advised Mr. Munroe in regard to the feasi- bility and practicability of building that proposed dam and works. I should think my advice extended about up to the time we made the survey. I looked all over the ground at his instance, with a view of seeing whether it was practicable to construct a dam there with the power plant. At that time I suppose I advised him that from an engineering standpoint, it was practicable 710 and feasible to be done. I think it was in 1904 when I first went over the ground at Mr. Munroe’s instance, to advise with him about the feasibility of this enterprise. It might have been the spring of 1904. The present bank, this canal bank at about the point where the proposed dam is to be constructed, is a good bank. It has served its purpose for about 50 years and in most places ; of course, there have been breaks, which I know, along the towpath on account of high water and freshets, etc. I don’t know of any breaks at that point. I think it is even now a good bank, although it has not a base of 105 feet. It has an- 362 Kramer, — Cross-Exam. — Continiied. swered tlie purpose for which it was designed. The slope is 711 not regular in that outside bank. Now the way I know that hank is this : The riprap part is a slope of about 2^ to 1, and the part wliich is not riprapped is about 11 to 1 or 2 to 1. I don’t think that that bank was originally all riprapped, from its toe to the top of the towpath. The reason I could tell is this: There was a little path leading down from the towpath on to that flat upon which they are now building the power house, and that was worn and there were no signs of riprap there ; but below, say about, say about to the high water line, whicE would be 78 Hennepin there to 84, that would be about 6 feet. This 6 feet has never been riprapped, I am certain of that. I can tell that by the cut in the towpath. It has disappeared now. They have oeen filling it up, I think, with rocks. I did not know that the extreme high water of 1902 had 712 any effect upon that bank at that point. In 1902 during the flood season, the water came up in that bank to about 78 Hen- nepin datum. That would be 6 feet lower than the top of the towpath. With that high water, with reference to the top of the proposed dam, which is to be minus 73.2 Chicago city datum, that would just about make it to the top of that dam. The high water of 1902 came up to the top of that dam. I think that the highest water which has since come down the Desplaines Hiver, I think it was in 1904, if I remember right, the Desplaines Eiver carried more water that year than it did in 1902, but the elevation was about the same as in 1902. It varied, it showed that as much water did not come down the Kankakee Eiver in 1892. The water of the flood of 1902 came just about as high as the flood of 713 1904, but not any higher. The flood of 1902 came up to about what the crest of this dam will be, if constructed under the present plan. And that high point is about 6 feet below the toy) of the bank. To my knowledge, neither the flood of 1902 or 1904, did any damage to that bank at that point. I think that if a dam were constructed there, and a pool formed, whicli would come as liigh as the high water of 1902, that there would be a great damage to that bank. The water in the pool would do a greater damage to the bank, than the flood water of 1902, because this water level of the height of the dam, which I have given as 78 Henne])in datum, would just about be, some inches, pro))a1)ly six iuclies higher than the end of the embankment; that is, I mean in the riprap. And any waves or action of the current would certainly have the tendency to wash the part of the bank which is not rip- rapped. My answer is based upon the supposition that the 714 l)ank would remain an earthen bank; that is, if there was nothing done on this bank, if it were left iir the position it is now. When I said ‘‘present condition,” I would also include the new wmrk which has been done there. If the bank were properly riprapped, the construction of that dam would not do any injury to it at all. If the bank were properly riprap|)ed on that side, namely, the side toward the river, the construction of the dam, and the formation of the pool above it, could never be of 715 benefit to the old bank, for the simple reason that you ai*e disturbing a bank which has been in position for fifty years, and you could never make that bank any better, no matter how hard you tried. Any changes you make in that bank will sim])ly have the effect of injuring it. There is a strain upon the bank by the waters of the canal, on the canal side, but the depth is so slight that you could not speak of a strain, as you call it, on the bank, I mean the depth of the w’ater. To that extent there is some strain, on the bank, the weight of the water in the canal. If the bank were properly riprapped on the other side, and a pool were formed there by the construction of the dam, it would help to hold the water in the canal, but it would wash out that bank. 716 If it was properly riprapped from its toe to its top and raised, and the dam was constructed, and a pool of water formed there, that water would only relieve the bank from such strain as existed, caused by the- waters of the canal on the other side, during high water, because your level, 78 Hennepin datum, would be about the bottom of the canal. The high water would be a benefit to the canal; that is, the high water would be the only factor that would help to hold the water in the canal. 717 There is a certain strain on that bank, by the waters of the 718 canal. During high water time there would be a pressure from the river against the canal, only during high water time. Because during ordinary, say under 400,000 cubic feet flow, when the level of the bank was 78, then the surface of the water in the pool would be just about even with the water in the 364 Kra m er, — C ) oss-Exa m.— Conti n iied. bottom of the canal. So in that case yon could not speak about any particular benefit to the bank, by reason of the pressure from the river. That bank does not need any relief, because it is con- structed well enough to take care of the weight of the water in the canal, so you cannot add any strength to it. It is a ques- tion in my mind which would be worse, the formation of this pool on the other side of the bank, so that the bank could be re- lieved from that strain during high water seasons, or the strain that exists there now. You know when there is a good deal of high water coming down the river, it carries with it all kinds of articles and debris, logs, etc., and the current is very strong, particularly at that point it would be very strong, because it is the deepest part of the river, and the current would be swifter at that point, and the wash, the action of the current, the 719 stuff coming down the river, would certainly do more dam- age than the pressure would exert to help carry the water in the canal. Theoretically, the formation of the pool of water Ithere, whether there is a current or not, would relieve the bank from that strain which I say exists. When I say that the deep- est part of the river is at the point where the dam is being 720 constructed, I mean the depth of the riprap that you are go- ing to create. If the bank were properly riprapped from top to bottom, and the top paved and the slope on the canal on the other side, I think you would have almost the identical condition, but it would add about $500,000 to your expenditure. Q. What would you suggest as to the proper riprap of the bank on the river side? A. Why, I would not disturb the canal liank on the river side at all. I would dredge the bank, or I mean the old canal too, that is of course, I would continue the riprap from the point which I have indicated; that is, about 6 feet be- low the bank up to the top, and make the slope, that is, to 721 cut into the towpath, so as to reduce the slope on that first part, and then I would carry it out in the canal, and dredge the canal at the bank and build up the bank from that side. Of course, that would i)ractically mean the construction of a new canal. If you do that, the bank would not be in any danger from the construction of the dam. I do, and I don’t know what the com- pany intends to do in the way of protecting tlie l)ank. That is a matter which I would not like to speak about, because I have not seen the plans of the company. I haven’t any personal knowledge of what they intend to do there. My testimony that this pool of water, which would be formed by the construction of the dam, might injure the hank, is based upon the proposition that the bank is not properly riprapped, because I don’t think any com- pany organized for gain would spend half a million dollars in im- proving the canal bank. It would simply mean the impossibility of the scheme. 722 Q. You didn’t advise then, in 1904, that this very work that is going on there in respect to that bank, was proper for that purpose? A. Why, at that time, why, we — I looked — T think I recommended dredging. Q. Dredging what? A. Dredging the old canal. I would not like to go into the transactions I had with Mr. Munroe at that time, because they were confidential, and they 723 are still confidential as far as I am concerned. If the bank were properly riprapped from the bottom to the top on the river side, there certainly would be more danger of the water eating into the bank, and injuring it, than there is now to the pres- ent bank, from high water; that is, with the pool. That is so because your water will raise, as we have — I think I have said, up to the height of the towpath, which is 84 Hennepin datum. As to whether that depends upon how the water is controlled by 724 the gates, if you let out the water by the gates, and if you are able to maintain this, why you could not maintain the said gate, if you wanted to; it would have to go a little higher; then suppose you could maintain it at 78 during high water time, you would have no power at all at your plant, absolutely none. If you did not have any power, your plant would be a very poor one. The present condition at the site of the proposed dam, has al- ready been changed. The conditions as they exist today at the mouth of that river are not the same as they were a year ago. The water is about 2 feet above the cofferdam. Deferring 36G Kramer, — Cross-Exam. — Continued. 725 to the conditions that existed before the work was done, I don’t think you could ever make another hank like that by altering it, and make it as good as it has been, I don’t care what you do, you could never establish that bank again. You could not improve that bank by riprapping it from the river side. If you don’t built any dam there, that is what I mean, I think it would be better to leave it just the way it is. Of course, if you build a dam, then you have to change the entire conditions of that bank. If you would build a dam, it would be better to riprap it on that side. That would certainly be a protection. 726 Of course now the bank stands in the canal, you understand that. Well, when I made this statement about that bank, I remember that I assumed there would be no riprap. Of course the bank is riprapped, and I asked Mr. Eeeves at the time if that was not the canal bank, the way it was now, so you could not cross examine me properly on that particular bank which I have indicated there before. I testified in response to Mr. Reeves’ (piestion that a canal bank properly constructed, which was 18 feet high and 14 feet wide at the top, should have a base of 105 feet. I meant by the base, the bottom of the slope in the canal. Any canal has a berm. There is supposed to be a level part. I think in the Illinois & Michigan Canal, it is about, oh, say, 20 foot level at the bottom. Then it slopes up to the top of the towpath, then comes the towpath, then down on the other side up to the top where the slope on the canal bank meets the natural surface, that is what I testified to about 105 feet. I have said that a 727 bank properly constructed, 18 feet high, and the bank of the canal to be 7 feet, I want to add that, that is, the Illinois Michigan canal bank. I was just trying to make some figures on the base of the present bank, but I was interrupted. The nearest I could get at it, it was about 70 feet. When I testified that the proper construction of a canal bank, that is, 18 feet high and 14 feet wide at the top was, that it should have a base of 105 feet, I did not refer to a bank that was riprapped. That is based u])on the assumption of the bank that is made of earth, and 1 would leave a berm, so that the action of the wind could not affect it; that is, the berm, the water will make its own berm at a bank. 1 think 1 said that this particular bank in its ])resent condition, or its condition before any work was done tliere, was 18 feet 728 high and 14 feet wide at the top. And it only had a base of 70 feet, I believe. It has remained there and served its pur- pose for fifty years, but it was riprapped. I suggested that a proper construction of this particular bank, of the proper work to be done upon it, in view of the proposed dam, would be the paving of the top of the towpath, and the pav- ing of the side of the bank, the l)ank and the side of the canal. I think that would be a proper thing to do, because the Desplaines River is a river which is very uncertain. AVe have had occasion to find that out in 1902. Now of course, I said pave the top in case you put that feeder there, you understand; then only will my statement be correct. But we cannot tell how much water will go down there. Now, for instance, where the Draniage Canal had figured on 850,000 cubic feet ])er minute. Then you had 729 the high water of 1904 and 1902 we will say, because in 1904 was what was mixed with the canal water, so we cannot very well go by that, but we will take what came down in 1902, well, they say it was 800,000 to a million. It has been variously esti- mated. Mr. Johnson has estimated it 800,000, and he was at that time the hydraulic engineer of the Sanitary District. Now you take a million and you take the 850,000 feet, that will give you 1,850,000 cubic feet per minute, for which you will have to pro- vide. Therefore, you will have to pave the top of the towpath if you only build it up to the height which you want to build it. If you build enough gates in your power house, and work so that you control the level of the water and pass the water througii, you would have to pave it up to the top or a little higher, the ele- vation of which you would create during high water time. If you had enough gates there to control the water, you could keep 730 the water from overflowing on the top of the towpath. In that case you might say you would have to pave it up to the point to which you expected the water to rise. • That is an engineering matter, and it would have to be figured out how much water those gates would let through and where you could maintain the level. It would be possible to maintain your level below the top of the towpath bank. And in that case it would not be necessary to pave the top of the towpath bank. My suggestion is that the slope 368 of the bank on the river side, should be paved clear up to the level of the towpath, to the level — if yon then could control it up to — say you could maintain it at 80, well then if you pave up 731 to 81. You see you prescribe conditions there to a great ex- tent. I don’t think that you could make any accurate figures on how much those gates will let through, because you cannot fore- tell the water which would come down that river. If you built a dam there, you would alwa^-s have to figure on the water running over the towpath. If you are acquainted with the flow of the river, you can figure very closely how many gates you could have. I don’t think I could figure without knowing the plans, how many gates the company is going to put in that dam. I think it would be possible to put gates in that cylinder to control that water, and keep it from rising at a flood, even to the top of the bank, if you would also — if you would let water enough run to get away below the gate. That would necessitate the excavation of channels there where the gates are. You understand you are going to put 732 your gates on the other side, or between the power house and the spillway. You could never figure on the — it is always best to be prepared for the worst. Therefore, I would pave right to the top, even if I could maintain the elevation to about 80 ; you could never tell what it would do. I think it would be necessary to riprap or pave the bank on the canal side, because if the water would go round over the top, it would wash that part, and wash it worse than if it would come from the river side. It would wash it down into the canal; that is, on the assumption that it is under its bank on that side. If the water would not overflow, if it could be controlled so that it would not overflow the top, then I don’t think it would be neces- sary to pave the canal slope. Nor would it be necessary to pave the top of the canal slope. 733 Re-direct Examination. From this site up the canal, I don’t think that it is a fact that at times the high water has overflowed the canal bank and went into the canal. If that is true, that at times that bank down there at the site of that dam, or within 2 or 3 miles above it, has been overflowed by high water, and flowed over into the canal, then if tills (lam is constructed as proposed, it is true that the water would overflow this bank, without reference to any gates, or 734 any number of gates that might be put in. I remember the figures, but I would rather not answer the (question, as to where this dam is to be built according to the plans and specifica- tions. I told you before it was 78 at 400,000 cnibic feet per min- ute, at the top of the spillway. If you speak about a dam in con- nection with the power plant, you are — you see the whole power house practically is a dam, and then the gates form a dam, the gates by which they control it. The only thing that you could properly term a dam, would be what is commonly known as a spillway, because that is — the surplus of the water would go over the spillway ordinarily, unless in high water time, when they would run water througli the gates. Now, of the 78 feet, I mean the top of the spillway, and the 400,000 cubic feef flow, if 735 you use 400,000 cubic feet, the surplus of the water, even if there is more in the river, would flow over the dam. This dam is to reacli across the Desplaines Eiver, and up to and con- nect with the bank of the Illinois & Michigan Canal. Between the tow bank of the canal, and across the river to the bank on tbe other side, is the part that will be flowed full if this dam is put there. The dam itself would be, if you assume the river to be 61 — but you will have to go down, because it is 4 feet deep. That would bring it down to 55 or at least to the rock, 55 to 78, or 23 feet, that would be the height of the structure, of whicli you would 736 have 6 feet below the bed of the water at the junction. Then that would be 17 feet from the surface of that water to the top of the dam. That 17 feet of dam must be within a foot of the bottom of the water in the Illinois & Michigan Canal. Then if that pool is formed, there will be more than 17 feet of water 737 up to the top of the dam. There would be 22 feet. And if the river itself have a volume of water that will raise it 4 feet further, that will make it 26 feet deep. The surface of the water in the canal, I should think, was about 82 Hennepin, and that elevation, including high water, is 82, so it would be just about even, and if this dam is built according to the dimen- 738 sions we have just been talking about, and a volume of 4 feet deep of water runs over the crest of the dam, then the top 370 of the water in the river will be about on the level with the top of the water in the canal. I am figuring on about 5 feet of water in the canal. If the water is poured on the river side of this embankment, whether it is riprapped or not, it will saturate and soften the canal bank, and there is another point coming in there. Sometimes the water is let out of the canal entirely, so that you have no wmter in the canal. Therefore, if your water comes up, high water comes up, there will be a pressure against the canal bank, and no pressure inside to sustain it. So far as the pressure is concerned, 5 feet of water does not amount to 739 much. The bank is sufficiently strong to maintain the canal. The saturating of the bank with water and softening it, dim- inishes its strength, especially when there is no water in the canal. The water in the Illinois & Michigan canal is let out each winter. I have seen it drawn out from November up to April, this time of the year. I would not say at that point, I don’t know about that particular river here, but I mean the river further down, for instance, at Marseilles, along the drainage canal, the Summit canal- and the canal below Lockport, etc. They let water out all along the canal as a protection to it against frost and freezing. IVhile I have not seen it emptied at this particular point, I have seen it emptied both above and below. The way I remember it, this proposed diini will certainly 740 flow the bank, as far as tlie bank at Channahon. I think that is about 34 miles. On cross-examination I have an- swered in substance that it is not possible to make a construction by ])utting up stone and masonry on the side of the bank to pro- tect it. It would not be a commercial proposition to build a wall there, 34 miles long, that would protect it from being saturated and weakened by water being placed on the side of it. As the work has been commenced and 'partially done at and near the site of this dam, the method of construction that they have used, if they continue it the way they have, I don’t think would do 741 any good at all. As to the advice and counsel that I may have given Mr. Munroe in 1904, concerning the possibility of the construction of a dam at and near the site of the present dam in ])i*ocess of building, there were no plans and specifica- tions drawn, except a re])ort made on the ])ro]^osition, which is still in existence. 371 The engineering feasibility must also carry with it the com- mercial possibility. An engineer could not advise his client, just from an engineering standpoint, to go ahead and do work, un- less he was convinced that it would also be a commercial proposition. So I had in mind the element of the ])racticability in point of expense, as well as the possibility of doing the 7-t2 work, when I so advised him. As to whether I had in mind also the protection of the canal and the canal bank from any injury, you are asking me a question that I would rather not answer, because we had at that time spoken about it, and Mr. Mun- roe made a certain statement, and after he told me that, I thought it was all right. I regard the information I have in this respect as confidential, and for that reason don’t wish to answer. 743 In my cross-examination I spoke about the necessity of riprapping out into the Illinois & Michigan Canal, in order to save the bank. As to how much of the prism of the canal, in point of width of the canal, that would destroy, the way I proposed was to continue the slope of the riprap. I think that slope is 24 to 1. If you continue that slope up to the top of the towpath, and riprap it up to the toj) of the towpath, and then pave the towpath, and also pave the other slope over the water in the canal, you would cut oft on the towpath probably 5 feet, and therefore you would have to add the 5 feet at the canal side. I should think you would have to fill up 5 744 feet of the canal; that is, you would have to maintain your towpath under the law, I think it is 12 or 16 feet, some say, 12 and others say 16. (The objection to the admission of the map marked ^^The Rand- McNally new standard map of Chicago,” which was offered this morning in connection with the testimony of Benezette Williams, is withdrawn by the defendant.) James 0. Heyworth, 745 a witness on behalf of complainant, testified as follows : m red Examination. My name is James 0. Hey worth. I was sworn to testify and did testify before the Legislative Committee last December. I was subpoenaed yesterday to appear 'here this morning, and liave come in obedience to the subpoena. The subpoena required me to bring with me the plans and specifications for the dam of the Economy Light & Power Company, in course of construe-. 746 tion, in Grundy County, Illinois. I did not bring them with me, because a counsel for the Economy Light & Power Com- pany advised me not to. The counsel was Mr. McKeever. I think it was Mr. Buell McKeever, of the firm of Isham, Lincoln & Beale. So far as I can recollect, this is the subpoena that was served on me. Said subpoena was thereupon marked Heyworth Exhibit 1 and offered in evidence. My business is that of a contractor. I have been in 747 that business since 1890. At present I have a contract with the Economy Light & Power Company for doing some work on a dam, in the County of Grundy, near the inoutli of the Bes- plaines Elver. I have a copy of that contract, with the plan and specification attached, but not with me. It is at my office at Michigan Ave. and Harrison St. in the City of Chicago. That is where the set of plans are. There is no physical inconveni- ence about bringing the plans, if I had not been directed not to. The date of the contract is July 15, 1907. I first learned that there was such a piece of work to be done, by receiving an invita- tion to bid from Daniel M. Meek, consulting .engineer, Madi- 748 son, MTs. I believe he was the consulting engineer of the Economy Light & Power Company at that time. He so held himself out to me. I have not that letter with me. That stated when the bid should be in, but I don’t know when. My recoL lection is it was longer than ten days. I had about four weeks to prepare the bid for it. I knew of the work before, through Mr. Munroe. I could hardly say I had been in consultation with Mr. Munroe before that, excejDt that he asked me if I would like to bid on the work, and I said I would. That is, Mr. Charles A. Munroe. I knew there were four or five other bidders ; I 749 don’t know how many. The length of the time called for by that contract, was in a way problematical; it would depend upon the development of conditions there somewhat. You real- ize that there were a great many dimensions connected with this power plant. From water’s edge to water’s edge, I should say it was in the neighborhood of 280 feet. That would l)e from the low land. Yon see the channel in the river is indicated on the map. That would be the width there. That has been changed a good deal though since that map .was made. Those banks are not now where they were on that map. This side is washed out considerably. By ‘^this side/’ I mean the south side. I 750 think the elevation of the proposed dam was 77. And that is minus 77 Chicago datum. Without referring to the plans, I could not give the height which the dam would have from the surface of the ground, at the bed or bottom of the river in the center of the river, to the crest of the dam, in feet and 751 inches. It was in the neighborhood of 18 to 22 feet. My best recollection now is that it was about 21 feet. The contract specified a time when the work should be completed, which was September 1, 1908. I can’t tell you whether there has been a change in that contract in that respect. There has been in my attitude. Before the Legislative Investigating Com- mittee, I said, ‘^well, I think I have got four or five months’ time on it.’^ That was correct as I understood it, that is, from my standpoint. I have had no such intimation from the Economy Light & Power Company, but it would be a claim for delay or extension, which I would expect to substantiate. My testi- 752 mony was given on the 26th day of December, 1907. I filed a claim or made a statement of my position demanding ad- ditional time. I have written letters explaining the causes of the delay. The letters to which I refer were written before this suit was begun, and had no reference to the injunction suit. I began the actual construction of the dam in the early part of 753 September, as close as I can recollect now. On the 26th of December, 1907, the rock excavation for the power house and the dam was about one-fifth done. I had not at that time begun work on any of the concrete or masonry. I was merely excavat- ing the bed of the river and banks where the power house 754 was to be located. I had at work there in December, about 180 men down to 130; it varied. I think I received notice of the injunction having been issued in this cause, on the 31st of December, 1907, promptly upon its being entered. I couldn’t tell whether I did or not. Since then we repaired a break in the 374 H ey wo rth^ — D i rect Exa m . — C on tinued. dam, and made otb^r repairs on the old levee, that was there when the work was stopped. That was in the cofferdam and the earthen levee. The cofferdam is composed of a row of 4-inch sheet piling, - with 3 wales opposed about 10. feet away by another row of sheet piling of heavy wales, tied together with tie rods, the same being filled with earth and rock. It was filled with earth and capped or bedded with rock on tojD, so as to hold down the dam. This would stand a head of water of about 12 feet. It was not com- pleted at the time we had the big flood, and due to an extra amount of water which the drainage hoard let through the 756 bear trap dam, — to the best of my knowledge and investiga- tion, I would say a part, about 110 feet of the cofferdam run- ning parallel with the level, was forced in and laid on its side, the result of which was a filling up of the outer cofferdam, and' later, due to a washing of the intercepting levee, the filling up of the inner cofferdam too. lYliat I say about action by the Drainage Board in letting an extra amount of water go through the bear trap dam, is the result of an investigation that I made during the time of its action. I found some extra water and 1 made some inquiries and reached that determination of the matter, that that was what caused it. 757 (Counsel for complainant moved to exclude from the an- swer of the witness, the opinion and conclusion as to the causes.) IVe repaired the cofferdam referred to, replacing it in about the same condition as it was prior to the accident, also repaired the earthen intercepting levee, and two up-stream and down- stream levees, which had been cut up by the flow of water, and took our machinery equipment and tools out of the cofferdam pits, and iDlaced them on high ground for storage. The work to repair the cofferdam and levee was done with a very small force of men. It took about’ 45 days. It could have been done with the force of men we had there at the time of the accident 758 in about a week. lYe had from 8 to 25 men at work on it. The cofferdam as reconstructed by me, was about the same as before the break, exce])t that we left out the inner row of sheet piling. It was neither higher nor lower than it was before; practically the same; it may have been an inch or two, some- thing like that, but it was practically the same type dam as it was before. Since that time there was some work done on the levee at the Smith bridge just above Channahon. A levee is a barrier composed of earth or other) suitable material, which is raised above the natural elevation/ of the ground, for the purposes of either impounding water, or keeping the water from over- 759 flowing other territory than that confined by the levee. The levees referred to, near the mouth of the Desplaines Eiver, are temporary levees erected for the purpose of prosecuting the work. They are in the nature of a cofferdam made of dirt. I refer to none of the permanent levees when I speak of the levees at the site of the work. Two of those levees are at right angles with the course of the stream, and one of them is parallel with the course of the stream. Some of the levees which are at right angles with the course of the stream, had a flow of water over the top, which caused a cut and washed out some of the top of these levees. This was refilled with dirt, and some rock was placed on the top of those earthen levees, so as to hold the dirt as far as possible against future floods. Its condition, after T had caused that work to be done, was nractically the same as was its condition immediately prior to the break, with the 760 exception that it had a little more rock on it afterwards than it had before. We made some parts of it stronger when we were repairing it, than they had been prior to the break. There is a great deal of it that is practically the same as it was before the break. We hardly went to the extreme of making it enough stronger than it was before, to avoid possibly a repeti- tion of that experience. We repaired the break with a small force, and tried to make it as good as we could without much planning for the future. I was cutting things down as eco- nomically as I could at that time. We always hope when we fix a levee, to make it somewhat stronger than it was before; but we cannot tell. We had no definite plans of strengthening that levee; that is, no broad plan of making it a different size or stronger levee. We simply repaired the breaks in it, that is all we did. A cut sometimes has to be strengthened with rock, where an original -levee don’t need that rock. It is a new fill and 761 it is soft and has got to be protected with rock. I don’t think the leeve there to-day is as strong as it was when the injunction was served. As a rule, a repaired levee is not quite as strong as the original levee. The initial strength of an unbroken levee is somewhat greater than that of a repaired levee. We didn’t plan any such strengthening, as that of resisting any similar fiood. I had a very small gang of men there, and we tried to hold it down with as small an expense as we could. The coffers and levees have since been repeatedly injured by the 762 natural fioods. A very high flood is not as dangerous as a flood that just tops it. We have repeatedly had floods that were considerably higher than the one which made the break. Those floods -do not give one-fourth of the trouble that a flood that has got just about to the top of your work, does. It w'as one of the heavy floods of that season of the year. An unusu- ally heavy flood for December as far as I could gain from talking to the river men and inhabitants down there. Including Decem- ber my recollection is that the total estimate for the work on this contract was about $36,000, which, after deducting 15%, would give us the amount of money that was estimated to 763 me on January 1st. That would be $30,600. That includes part of the regular contract work in the month of Decem- ber. I did not get my pay for December work until along about the 5th or 10th of January, and I had not received that pay at that time. I had the estimate made out before I got the money. I think about $22,000 had been paid me on the 31st of December. I have so many of those estimates I can’t remember. Under the advice of the counsel heretofore referred to, I 764 still refuse to produce the contract plans and specifications for the construction of this dam. It is not on account of any reason or interest of my own that I refuse to produce the plans, specifications and contract, but simply because of the ad- vice of counsel for defendant that I have referred to. C ross-Exa min at ion. To the best of my recollection, Mr. Munroe first conferred with me, with reference to this proposed work, about four or five weeks before the work was let. I liad some talk with Mr. Munroe about his purpose of building a dam and a power house on the river, I should think, about five years ago. At that time he talked with me with a view of my possibly bidding upon the contract for that work. I commenced getting my material read}- for this work at Dresden Heights the latter part of July, 765 and the first part of August, 1907. I assembled some ma- terial there before the contract between me and the Economy Light & Power Company, was signed. I had been advised that my bid was accepted before the formal contract was signed. I then began getting my material ready at the ground. In the statement I have made or the testimony I have given, as to the amount which had been paid me, or estimates given me for the work, nothing was included for the cost of my plant, assembling my material there, and erecting my houses and preparing for the work. The cost that I was put to in that particular on this contract, was about $110,000 or $115,000. I have a number 766 of houses there now, and a considerable amount of machin- ery. I had certain sub-contractors on this contract. Work has been done by the sub-contractors in addition to my work at the time this injunction notice was served. Q. What was the work that had been done under your con- tract or sub-contract, in addition to what you have already men- tioned! (Counsel for complainant objected to the question as ir- relevant, inconi})etent and immaterial, and not proper cross- examination.) It was thereupon agreed by stipulation that the objection might stand to each question asked. A. The contractor for the levee for the Riley Creek diversion had assembled and erected his machinery to do this work. He had it all ready to begin within a few days of the time of the injunction. The contractor for the levee at what is called the Smith’s bridge levee, above Channahon, had also assembled his graders, teams, outfit, etc., and had done some work on that. That Smith’s bridge work is about 4 or 5 miles above the 767 point where the dam is being erected, I should think. The Smith’s bridge levee is a permanent levee. On that levee. 378 at the time the injunction was served, I should say about 12,000 to 15,000 yards’ work had been done. The levees that I re- paired after the flood were in the bed of the river, that a 4 or 5 foot rise would submerge; not under water when the river was at its low water mark. No work had been done on the levee in- tended for the Riley Creek diversion, prior to the injunc- 768 tion, except assembling, and erection of the plant to do that. A concrete core wall for a levee was made before the in- junction, but no concrete for the power house or dam or plant, as the question was put to me before. This core wall concrete was a short piece of wall, about 6 feet high, 3 feet base and about 80 feet long. Q. Was that located upon the tract reserved for a govern- ment lock? (Counsel for complainant objected to the question, as as- suming a state of facts to exist and to be in evidence, where- as, there is no evidence that any such state of facts does exist, and because the same is irrelevant, incompetent and imma- terial, and not cross-examination, in any point of view.) A. This core wall of concrete was placed in the levee and dam, which was to connect the canal levee with the proposed power house, so as to make the dam water-tight. This dam was placed in this position between the levee and the canal and the power house, composed of dirt, as I understood it, so that the same could be readily removed at any time. 769 It was so jdaced for the purpose of the installation. For the purpose of the erection of a lock at this point. That would be, referring to Hillebrandt Exhibit 3, at the right hand side of the river going down, and at the end of the proposed dam. The purpose of the core wall that I refer to, was to pre- vent water following the course of the bed rock underneath the surface and undermining this dam. The portion that I refer to as having been built of earth could be very readily and very quickly removed by steam shovels. That work was made of that character under the direction of the Economy Light & Power Company. At the time the injunction was served, the earthen dam part was completed; the up-stream side had been riprapped 379 to the rock. It was practically ready for the service for 770 which it was intended. The connections provided for the towpath bank had been completed at the time of the injunc- tion. With the exception that the towpath was to be raised some 2 feet, that was the only connection to be made with the tow- path on the plans. About 1,000 feet of the work of raising the towpath, had been completed at the time of the injunction. It had been raised 2 feet, under the supervision of Mr. Mead, rep- resented by Mr. Woermann, the Dresden engineer. The Canal Commissioners were represented in this towpath matter. The canal superintendent was down there and consulted with us and we with him, and finally we put it in according to his directions. (Counsel for complainant objected to the last answer spe- cifically as being a conclusion and opinion of the witness, 771 and embracing transactions and conversation and directions between the witness and this other party, and that it is not the best evidence, and also as irrelevant, incompetent and immaterial.) The plans for this work are not physically attached to the contract between myself and the Economy Light & Power Com- pany. The earthen dam or embankment that abuts upon the tow- path is now about 90 feet wide, or the proposed width, I think, is 96 feet; it is now about 75 or 80 feet wide, ready for its junc- tion to the masonry as soon as that is completed. That was so at the date of serving the injunction. The specifications are physically attached to the contract, but the plans are not. lie-direct Examination. In the center of the river at the point where the dam would come, before I did anything at low water, it was about 4 or 5 feet. deep. It is now about the same. I don’t know what the depth is to-day. At the time we got our coffer and levee in, we had about 16 feet of water. It was considerably deejjer at these various floods I have referred to. The country down there is to a. considerable extent rather flat on one side. It is high 773 on the right hand side, and it is low on the left hand side. I haven’t myself seen the bottom of. Pie river. We took the soundings that were made by the representatives of the Economy 380 Light & Power Company people, and, we made a few ourselves, hut could not determine by those the character of the bottom, except that it was about, on an average, 4 or 5 feet deep. There were some boulders in it and some rocks. At low water that was all covered throughout the width of the stream. The canal superintendent that I referred to was a Mr. Keough; he is now dead. Mr. McDonald, I think, was the last man along there. Mr. Keough, as well as Mr. McDonald were there; they talked with my superintendent. Whatever direction or conver- sation of that kind occurred, occurred between Keough, or Keough and McDonald and my superintendent. It did not occur directly with me. My orders to my superintendent were to see them and have them approve the till that we were putting on the canal levee towpath. 774 (Counsel for complainant thereupon moved to strike out all reference to the witness’ orders, through his superin- tendent, and to the conversations by the superintendent, as being transactions of which the witness does not have personal knowl- edge, and as not being the best evidence.) I say the work, on the connection of that dam with the tow- path, and the raising and filling of the towpath for a thousand feet back up-stream before the connection, is completed. Re-cross Examination. The character of the rock that I excavated from the cofterdam, was a sandstone, also a soapstone, also a soap sandstone, also a bastard sandstone, some iron in it. Re-re-direct Examination. 775 That is not what is ordinarily geologically called sand- 776 stone shale. There were shale stratas of it. There were also stratas of sandstone and stratas of soapstone. I have told you all I know about that sandstone. It was probably formed there in the same manner as it is formed in the other deposits found in the country, with the exception that the top of this sand- stone was subject to severe glacial drifts, and I think the action of the receding waters and sun caused the shale, caused it to disintegrate to a certain extent. If the same intluences would be continuous, it was a continuous process; and there was some evidence of clay, which undoubtedly formed the soapstone.. As to whether it was the customary, normal sandstone and shale which overlies the coal measures, and belongs to the coal measure period, it was not quite as deep as you find that. You take it in Alabama in the Birmingham district, and you will find the shale limestone, that is down lower in the river in what they call the foot hill district, which runs 3 to 4 and 5 feet deep. 777 This shale seemed to be very shallow, and was superficial in that respect. This sandstone shale is the same as I have found in Louisiana and Alabama or Indiana; it was much shal- lower in depth. It seemed to have been caused more by tlie water than by any upheavals, as the other sandstone fields, to which I have referred, seemed to have been caused by the u]>- heavals or action of the heat and the ground. I mean to convey the idea that in the recession of the waters from the higher points to the valleys and the lower points, the loose material will follow the drainage; naturally our shed is toward the Mississippi River here, and the evidence is, and 778 the valleys of that district show that a glacial drift had drained off through that way and had lodged and been left there by the receding water. Robeet E. Ore, a witness called on behalf of complainant, testified as follows: Direct Examination. Q. I believe Orr Exhibit 3 has already been put in evidence. I direct your attention, Mr. Orr, upon this Orr Exhibit 3, to the enclosed area marked ‘‘Riv. Desplaines,’’ which has already been testified as representing the Desplaines River, and to the two sets of lines by which that river is delineated and its 779 course enclosed; one is the firm, continuous white line on one side and the other is a set of dotted lines adjacent to it, and which is outside of the firm line most of the way, however, in one or two instances, it seems to be reversed. What is this dotted line, or what are these dotted lines? A. It represents the meandering line of the Desplaines River. 382 Explaining the condition between the index plat and the sec- tion plat, Orr Exhibits 1 and 2 are indexes of hooks, plat hooks 1 and 2 in the Canal Commissioner’s office at Lockport. The index plat is on a small scale, showing the whole area of what is in the book. The book is made up of section plats showing, on a large scale, each section in the canal. The three hooks known as plat hooks 1, 2 and 3, which I have referred to, contain sec- tion plats of the canal for its entire length, from Bridgeport on the northeast, down past Joliet and Dresden and clear to Ottawa, or the west end of the canal. Each of these hooks has an 780 index plat on the front, and then section maps for the de- tail work following it. These section maps throughout the course of the Desplaines River delineate these dotted lines upon each side of the river. Those plats were prepared hy A. J. Mathewson, Assistant Engineer of the Canal Trustees. He was employed by the Canal Trustees in 1847 and 1848. The blue print now shown me, which is marked ^^Orr Exhibit 6,” for identification, is a representation — it is a tracing of plat hook No. 1, representing Sections 3, 4, and 5, Township 38, North Range 13, East of the 3rd P. M., showing a part of Mud Lake. 781 This is a part of the plat that was surveyed, and to which I have heretofore referred, made at the time, and by the person to whom I have already referred. I know from practical examina- tion it is a true copy in every respect. Counsel for complainant thereupon offered in evidence a cer- tified copy of plat of map of Beard, part of Handy’s part of the Town of Kankakee, laid out between the mouth of the Kanka- kee and AuPlaine River, in Section 36, Township 34, North Range 8, East, certified by Fred S. Johnson. Said plat was thereupon marked as complainant’s Exhilut iV-1. (Atlas, p. 3929; Trans., p. 6527 ; Abst., p. 1920.) Counsel for complainant also offered in evidencec a certified copy of a plat of Buffalo, a town laid out in the northwest quar- ter of Section 2 in Township 34, North of Range 9, East, in Will County, j^roperly certified by the proper officer of the 782 county. Said plat was thereupon marked as complainant’s Exhibit A-2. (Atlas, ]). 3930; Trans., p. 6529; Abst., p. 1920.) Counsel for complainant also offered in evidence a certified 383 copy of a plat or map of the School Section Addition to the Town of Juliet, Cook County, Illinois. Said plat was thereupon marked as complainant’s Exhibit A-3. (Atlas, p. 3931 ; Trans., p. ()531; Abst., p. 1920.) Counsel for complainant also offered in evidence a certified copy of a plat of Juliet Subdivision of the southeast fractional quarter of Section 9, Township 35, North Eange 10, East of the 3rd P. M., platted May 13th, 1834. Said plat was thereu})on marked complainant’s Exhibit A-4. (Atlas, p. 3932; Trans., ]>. 0533; Abst., p. 1920.) Counsel for complainant also offered in evidence a certified copy of the plat of Subdivision known as AVest Juliet, a survey and Subdivision of the west 4 of the southeast } of Section 9, Township 35, North Eange 10, East of the 3rd P. AI. Said plat was thereu])on marked complainant’s Exhil)it A-5. (Atlas, }). 3933; Trans., ]). 0535; Abst., p. 1921.) Counsel for complainant also offered in evidence a certi- 783 tied copy of a map or plat of the Town of AJenna. Said plat was thereupon marked complainant’s Exhibit A-0. (Atlas, p. 3934; Trans., p. 0537; Abst., p. 1921.) Counsel for complainant also offered in evidence a certified copy of the plat of Lockport. Said plat was thereupon marked complainant’s Exhibit A-7. (Atlas, p. 3935; Trans., p. 0539; Abst., ]). 1921.) Counsel for complainant also offered in evidence a certified copy of plat of AVest Lockport, together with a certificate of va- cation in 1855 attached. Said plat was thereupon marked com- plainant’s Exhibit A-8. (Atlas, p. 3930; Trans., p. 0541; Abst., p. 1921.) ' C ross-Exam ina t i o n . I have a personal knowledge that Air. Alathewson made the maps I refer to. Mr. Alathewson told me that he made those maps and that he preserved a copy, and they are in his own handwriting; the printing is in his own handwriting; all this 784 work was his tracing. On these copies presented here, his handwriting is represented; that is his printing; his- hand- printing. I know his hand-printing. I had known Air. Alathew- 384 On', — Cross-Exam. — Continued. son since 1900. He is not living now. These maps were made in 1847 and 1848. I was not there when they were made. I am now 52. I was not living at the time these maps are alleged to have been made. In addition to what I have said, I base my statement that these were made by Mr. Mathewson from certifi- cates : that is to say, the certificates tell that they were made 785 by a certain person. The certificates to which I refer are in the records of Will County. I could not say whether there are any certificates there signed by Mr. Mathewson which show that these maj^s were made by him. I speak of the public records, and he was the surveyor, county surveyor, there for some time. There are no certificates there that show that these particular maps were made by Mr. Mathewson. The maps as recorded bear a date. This date here that I produce is June 5th. 1847. I understand that to be the date at which the map was 786 made. There is a date other than that on the maps as they are recorded. The original maps of Mr. Mathewson were not recorded at all. These are copies of the original maps ; 787 duplicate copies. The canal people kept the original copies and they are in the canal office now. I cannot say whether or not the maps which are in the Canal Commissioner’s office are copies of the original. These maps that I produce are copies of that one in the canal office. 788 Q. You don’t know whether that is the original or not! (Question objected to as immaterial; he stated that they were the canal records, and that is sufficient for the purpose. Whether Mr. Mathewson made two or three sets and kept one of them and returned another to the Canal Commis- sioners or Trustees by whom he was employed to make a survey of the plat, is immaterial.) A. That is the original plat, so far as the canal records go, that I can find. So far as the records go, that is the original map, with the Trustees; that is all the original that I know of. Q. Do you know that it is an original at all? (Question objected to as an attempt to assume a state of facts.) A. I do not know particularly that it is, but it is an original. I mean it is the first copy of the records of survey made by Mr. Mathewson from Ottawa to Chicago, on the canal. That is, it is a copy of what appears in the Canal Commissioner's office, as to that survey — is the first copy; that is, the original map 790 made by Mr. Mathewson from that survey. It is in his drafting, his delineation; that which is there in the office, was made by ‘his hand; that is his work; that is the way I 791 identify the work. I could not swear that that which is in the office was made by his hand. I did not see Mr. M^athew- son draw the lines on the cloth. I take it that it was under his direction, and Ihat he altered and made these notes as he saw fit, and corrected them from time to time. The records and cor- rection, dating from 1837 to 1892, are his handwork. I knew Mr. Mathewson as a neighbor. He lived in Lockport, and I lived in Joliet. I had some business over there. I do not know of my own knowledge whether or not those meander lines correctly represent any meander lines shown by the survey of that property. I do not know when the meander lines were placed upon the map. They were made, though, at the time of the map. I know that from the work. 792 There are no characteristics in that dotted line that show me it was made by Mr. Mathewson. I have no knowledge of my own as to when that meander line was traced; whether it is the correct meander line of the stream or not, I have no personal knowledge. These Exhibits, — the same being plats, which I have identified and which are marked Exhibits Orr from one to six, inclusive, are true and correct copies of plats in the office of the Canal Commissioners, purporting to be made by Mathewson. There is just one set of those plats in the office of the Canal Commissioners, purporting to be made by Mathewson. These Exhibits are copied from the only plat of the survey, as made by Mathewson, which is on file in the office of the Canal Commissioners. 793 Q. I direct your attention to the following question and answer appearing in your cross-examination: ^^As a mat- ter of fact, were the original maps of Mr. Mathewson recorded at all. A. No sir.” In that answer did you mean to state that 38(j On', — C ross-Exam. — Continued. they had not been recorded in the recorder’s office as land titles are recorded? A. Yes sir. Q. Did you have any other meaning than that? A. No sir. I have seen the book in which these plats appear in the office of the Illinois and Michigan Canal. There are three books, ai^d I have exhibited the detailed pages of 1 and 2 here, Exhibits 1 and 2, and they constitute all these sections, a delineation of all the sections cut and traversed by this canal and this survey by Mathewson. They do not purport to be a survey of the canal land ; they do purport to be a survey of the canal 90-foot strip. 794 The title of that book reads, ‘‘that book, numbers 1, 2 ajad 3 Canal Survey,” that is the title. That is all there is; that is all that appears on the book aside from plats themselves and the index. I made these blue prints by the blue print process. I took that from Mr. Mathewson ’s own work. This is a copy of Mr. Mathewson ’s own work. I did not get this from Mr. Mathew- son myself. These are the Sanitary District maps purchased of Mr. Mathewson. Mr. Mathewson made them. These blue prints were made by Mr. Pierson this week. I got Mr. Mathewson ’s tracings; it was the original, these are duplicates. Q. Mr. Mathewson, then, kept the original himself, did he not? (Question objected to on the ground of ambiguity as being directed to the blue print and asking whether the thing from which the blue print was printed was the original which, in the connection in which it was used, specified that it was the original as to the blue print, and later giving it the sig- nificance in the following question of its being the original of the work done for the Canal Commissioners.) 796 Q. Isn’t it true that Mr. Mathewson kept his original tracing and that that is what the Sanitary District acquired? (Question objected to on grounds already indicated.) A. No sir. 797 AVe left it in the Canal Commissioners’ office. The original is in the Canal Commissioners’ office. Q. You are as sure of that as anything you testified to? (Objected to as improper.) A. The original plat is in the Canal Commissioners’ office. 387 The original plat made by Mr. Matliewson is in the Canal 798 Commissioners^ office. This I liave here is a duplicate from that in their office. This is Mr. Matliewson ’s work; his private excerpt from that record; I mean by that, private tracing. I do not mean that these particular documents that I have produced were themselves made by Mr. Mathewson. This print was made by Frank Pierson in the Tacoma Building, from a tracing that the Sanitar}' Dis- trict purchased from Mr. Mathewson. Then I went 799 down to Lockport and compared it with the original in the Canal Commissioners’ office. This is a duplicate of the plat records that are in the Canal Commissioners’ office. I don’t say that the one that is on file down there and the one that was copied here in the Tacoma Building were made at the same time by the same person, but it is an exact copy. The reproduction here is an exact copy of our records. 800 I personally took with me the blue print and tracing from which the blue print was made to Lockport. And I compared that blue print and tracing and each of them, with the original in the Canal Commissioners’ office at Lockport. These blue prints which have been introduced in evidence, and which were prepared in the way that I have described, are exact copies of the original records in the Canal Commissioners’ office at Lockport. When I say original records,” I mean books 1, 2 and 3 which I have described down there and nothing else. It is stipulated that the signatures of witnesses are waived, and that the exhibits may be retained without attaching to the depo- sitions and produced at the trial. 801 Counsel for complainant offered in evidence a copy of a subdivision by Russell E. Heacock, Joel Manning and Ed- ward B. Talcott, recorded as document 5303 in the recorder’s office at Cook County, Illinois. Said document was thereupon marked Exhibit A-9 and is as follows : 388 Orr, — Cross-Exam. — Continued. 25 ‘ ‘ Subdivision by Eussell E. Heacock, Joel Manning and Edward B. Talcott. Doc. 5303. Map entitled ‘ ‘ summit, ’ ’ recorded Au- gust 17, 1837, in Book H, page 302, New Book H of Maps, page 113. A subdivision of N. ^ and S. ^ of W. 1 of S. W. i of Sec. 12 T. #38, E.*'l2 E.’’ (See Atlas p. 3937; Trans., p. 6543; Abst., p. 1921.) Counsel for complainant then otfered in evidence a copy of the Subdivision by William B. Archer and Hiram Pearsons, recorded May 22, 1837. Said document was thereupon marked Exhibit A-10, and is as follows : 86 ‘ ‘ Subdivision by MTlliam B. Archer and Hiram Pear- Plat recorded May 22, 1837, in Book H. of Maps, page 17. Being subdivision of the N. E. \ of ^Sec. 14, T. 37 N., E. 11 E. of 3rd P. M., entitled ‘Map of Archer and Pearsons Addition to the Town of Desplaines, Cook County, Illinois.’ Surveyor’s certificate dated May 22, 1837. sons. Acknowledged by said Archer as owner of the E. ^ and by said Pearsons as the owner of the W. 4 of said N. E. J. Note: At the date of record of above subdivision, William B. Archer had title to the E. 4 of N. E. J of Section 14 afore- said.” (See Atlas p. 3938; Trans., p. 6545; Abst., p. 1921.) 802 Counsel for complainant then offered in evidence a copy of the subdivision of Keepotaw, recorded in the recorder’s office of Cook County as document No. 3854. Said copy was there- upon marked Plaintiff’s Exhibit A-11, and is as follows: “107 Keepotaw ) Map entitled as in the margin, re- Doc. 3854. > corded July 22, 1836, in Book H, page J 241, New Book H. of Maps, page 88. A subdivision accoiMing to surveyor’s certificate (not dated) of the southwest fractional quarter, the west half of the south- east quarter and a part of the south fraction of the northeast quarter of Section 20 aforesaid into lots, blocks and streets. Acknowledged by Hiram Pearsons and David Hunter as pro- prietors July 22, 1836, before Isaac Harmon, Justice of the Peace. (See Atlas p. 3939; Trans., p. 6547; Abst., p. 1922.) Counsel for complainant then offered in evidence a copy of the subdivision of Edward E. Hunter, E. I. Gavin, Lathrop John- 389 son and Robert Davidson, recorded as document No. 4499 in tlie recorder’s office of Cook County. Said document was there- 804 upon marked plaintiff’s Exhibit A-12 and is as follows: ^ ^ Subdivision 123 by Edward E. Hunter, R. I. Gavin, La- throp Johnson and Robert Davidson. Doc. 4499. Map recorded Januarv 5, 1837, in Book H., page 268 (NeW Book H. of Maps, page 99), entitled ^‘Emmets- burg.” being* a subdivision of W. ^ of N. W. frl. i Sec. 30, with 10 acres on the N. end of the W. ^ of S. AY. d taken parallel with N. Boundary line, all of which are in Section 30, T. 37, R. 11 E. (See Atlas p. 3940; Trans., p. 6549; Abst., p. 1922.) Counsel for complainant then offered in evidence (from the official Gazette of the United States Patent Office for July 7, 1903), a description of certified copy of United States letters patent. No. 733010, for the propellation of vessels, being the ^‘Coen” patent referred to by the witness Fox. (Said letters patent appear in Ap- pendix II, p. 3891; Trans., p. 5860; Abst., p. 1725.) Said certified copy follows : A copy of the drawing referred to in said patent is also shown in the Abstract, p. 1727. Here follows the certificate of C. C. Billings, Assistant 805 Commissioner of Patents, that the annexed is a true copy of the letters patent of Charles M. Coen, granted July 7, 1903, for improvement in apparatus for the propellation of ves- sels. Here follows grant of letters patent by E. B. Moore, Acting 806 Commissioner of Patents. 807 Here follows diagram of patent. Here follows specification forming part of letters patent, 808 No. 733,010, dated July 7, 1903. 809 Here follows certificate of Commissioner Charles L. Binns, Notary Public, dated April 20, 1908. 390 813 Depositions of Arthur C. Clement, W. W. Stevens, H. H. Spoor, Urias Bowers, Isaac M. Johnson, Mikrel Anderson, Geo. S. Wightman, Jas B. Flanders, Geo. W. Kaymond, Obediah Hicks, Francis V. Belz, Henry’ B. Pohl, Geo. A. Perrent, Geo. Abbott, Edwin D. Brockway', Lisle Tanner, AVm. Found, Eliza P. Jones, Paul W. Jones, D. W. King, Charles Hoy’, Frank Paeddock, Eugene Daly’, Charles Clay", Charles E. Kerchival, Joseph Countryman, Jacob Blaess, Samuel Gatons John W. Taylor, L. F. Conant, John McCowan, James H. Ferris, and Charles Dimick. (Filed April 18, 1908.) Commissioner certifies said witnesses were produced, sworn and examined on their oaths, on February 19, 1908, and thereafter on days to which hearing was continued by agreement of parties, at the office of Frederick A. Hill, Master in Chancery of Will County, Illinois, jiursuant to the attached notice, and by stipula- tion and agreement of counsel. Said witnesses, being first duly sworn, testified as follows : Here follows notice of taking of depositions attached to said • introduction. 815 Venue: Caption of cause. Notice addressed to defendant’s counsel that on AYed- nesday, February 19, 1908, at 10 o’clock A. M., before Frederick A, Hill, a Master in Chancery of the Circuit Court of Will County, Illinois, in Joliet, depositions of witnesses named will be taken, said taking of said depositions to be continued from day to day, until completed. 816 Complainant deems the testimony of said witnesses neces- sary in said cause. Witnesses named: AV. "VV. Stevens, H. H. Spoor, Urias Bowers, Edward D. Brockway, Mhn. AV. Stevens, Geo. A. Parrent, H. B. Pohl, A. C. Clement, G. AY. Baymond, D. W. King, Geo. S. AYightman, G. M. Hollenbeck. ‘AYe shall also at the time and place aforesaid take the de])ositions of other witnesses, to be read in evidence on the part of the complainant in the above entitled cause. Dated Chicago, III., February 7, 1908. Signed by solicitors of com- :]9l plainant. Acknowledgment of receipt of notice hy Tsliam, Lincoln & Beale, solicitors for defendant. 817 Here follows copy of said notice, to which is attached the following stipulation: “Chicago, February 22, 1908. The further taking of depositions under the foregoing no- tice, now set by the said Frederick A. Hill, for Friday, Feb- ruary 28, 1908, is at the request of defendant’s counsel con- tinued by agreement to Wednesday, March 4, 1908. ‘ W. H. Stead, Walter Beeves, ' Merritt Starr, For Complainant . Tsham, Lincoln & Beale, For Defendant. 819 Here follows the following stipulation. Venue and ca])tion as before. “Stipulation. It is hereby stipulated by and betv/een ('ounsel for the parties in the aboye entitled cause, that iMr. Fred’k. A. Hill, the master before whom depositions are to be taken on the ])art of the complainant in said cause, under notice hereby attached, may cause the testimony of the witnesses to be taken in shorthand by stenographers and then typewritten from stenographers’ notes. It is also stipulated that the witnesses need not sign their testimon}^ after it is so taken. It is further stipulated that the stenographers’ fees may, after being adyanced in the first instance by the party on whose behalf testimony is taken, be taxed as ]^art of the costs as the court may allow, the stenographers’ and typewriters’ fees to apply hereafter only to the one official copy, this stip- ulation howeyer, shall not be a waiyer of the objections made by defendant to the taking of depositions before answer filed. (Signed) William H. Stead, Walter BsEyES, Merritt Starr^ Charles A. Munroe, For Complainant. Solicitor for Defendant. Arthur C. Clement, a witness for complainant, testified as follows : -Direct Exa Jiiination . 821 I am 56 years old, was born here in "Will County. Haye always liyed here except an absence in boyhood prior to the time I w^as ten years old. I haye liyed right on the banks of the 392 Clement y — Direct Exam.— Continued. Desplaines and gone up and down the river in boats from an early l^eriod of my life, practically every year, say from 1864 to 1900. I have not boated on the river since the drainage canal water 822 was turned in. I had a boat-house at the lock at Jetferson street bridge, kept in it a clinker-built keel boat, 14 feet long, capable of carrying about a thousand pounds. I loaded it to 823 the full capacity on the river lots of times. Before that I had a flat-bottomed boat 14 feet long but smaller than the clinker. After that I got a 16 foot boat, also a canoe, also a half interest in a semi flat-hottomed boat, also I had a sail 824 boat there. The semi flat-bottomed boat drew a foot of water loaded. It would carry seven to eight hundred pounds. The said boat was 22 feet long and drew two feet of water and would carry probably three tons. I did not use that on the river. We went with that hy way of the I. and M. Canal on the Chicago River and Lake Michigan up to Chicago and to Lake Superior. 825 We did use it on one or two experimental trips in the upper basin through the upper locks and up to the tow-path bridge on the Desplaines once or twice. MTien I was using the river or- dinarily from the middle of May until October I was down on the river nearly half the time. I started in life as an attorney and followed it up by the loan and real estate business. Since 1895 I have kind of retired. As to the depth of water in the river, there was plenty ex- cept that up the rapids this side of Brandon’s bridge and a little below and the rapids at Treat’s Island. There was no trouble 826 in running a boat down there that would draw even three feet of water, if you knew the channel. Between Lockport and a point two miles above Joliet the river is not navigable 827 for small boats. From Malcolm’s dam down to the mouth there was plenty of water until you got down about a half mile this side of Brandon’s bridge. There was a shallow place there amongst the bowlders. I had no trouble in running a row boat there, if I knew where to go, drawing fifteen inches of water. Then you had clear sailing if you knew the channel, right straight through to Treat’s Island. There you took the left hand channel going down, that is the east channel. That was the deepest chan- nel. Ahont one-third of the way down the island there used to 393 be an old dam, I think, or something. There was tlie shallowest place. I have grounded there a great many times ; sometimes I had to get out and pull it over. Generally I could pole it over. The length of that shallow place was not, I don’t think, over 100 feet. After that the water was deep until about the mouth 828 of the DuPage River. There you had to know the channel, or a boat drawing fifteen inches might strike bottom. Then you had clean sailing until just below the aqueduct there was an old dam used to be there and you passed through a rather nar- row channel there. Below that it was all bowlders for half a mile to the mouth. If you dodged the bowlders you were all right. If you did not you would come to grief. These were loose bowlders. There would be about three or four inches over the top of them, maybe two feet of water between them. The bowlders were about three feet in diameter, a great many of them. There was- plenty of water between the bowlders if you could dodge them. About 1885 I made a trip from here to a mile below the junction of the Kankakee and Desplaines Rivers and returned on the canal the same day, making a trip of about 32 miles from eight 829 o’clock in the morning until ten at night. That was prob- ably either in June or September; there was no trouble on the water that trip. I made two carries, one from the canal into the river, one from the Illinois River into the canal. We did 830 not have to pole at all that trip. The boat loaded as it was drew between twelve and fifteen inches. We put in oppo- site the oatmeal mill, about three-quarters of a mile below Jef- ferson street. At that time a boat drawing two feet of water would find the river navigable in the condition it then was. If the loose bowlders were removed and the hundred feet of shallows were excavated at Treat’s Island, and the bowlders at the mouth and at Brandon’s bridge were removed, I could run a boat carrying three feet of water on that. I presume in the neighborhood of three-quarters of a mile, taking all these three together, would have to be cleared out before you could get through drawing three feet of water. 394 The part of the river up near Lockport I could not run a row- boat on, and did not go there. 832 Lake Joliet before the deep cut was put through was quite deep, in some place more than sixteen feet. Lake Joliet is 833 about five to five and a half miles long. Mount Joliet would* be almost at the head of the lake, about a half mile down from the head. Mount Joliet has been pretty near all carted 834 away by being used for gravelling and clay for tile drains. The mound is now pretty near level. They were carting it away in 1863. The place above Joliet where we could not get 835 through was a very rocky channel and there was not wmter enough there to float a boat over. That extended about two miles. The back water from dam number one went up to Wood’s Island. I never went above that. Witness is shown Cooley profile wdiich is marked for identifica- tion Exhibit 1 of Complainant’s Depositions. Witness was un- able to make use of the profile. 836 C ross-Examinati o n . North of Joliet I have seen the river from the train as far up as Lockport. 837 For a mile and a half to two miles north of Wood’s Island you could not run a small boat either way. My boat house was in the vicinity of the guard lock at Jetferson street. The I. and M. canal and the Desplaines were coincident at 838 that point. When I went down the river I generally went through the locks into the canal and pulled the boat over at the Malcolm dam or below there at the oatmeal mills. Then I ran down the rapids past Brandon’s bridge and so on to the mouth of the river. There was a stone dam, the Jetferson street dam, across the river just at the boat-house. That dam formed what was known as the lower basin of the I. and M. canal. I went in the canal as far down as Malcolm dam. That dam used to extend north of McDonough street. It is gone now. A 839 man who was an experienced oarsman could descend the river from Malcolm dam to the head of Lake Joliet with safety, but would have lots of trouble; the trouble would come 395 from shallow water and bowlders. I would not say lie would be in danger of being overturned; I never knew of anyone being tipped over there in ordinary water. It is not a fact that very few people went down the river. T can remember a good many. Prom the head of Lake Joliet to Treat’s Island there are 840 rapids. Treat’s Island is a little less than half a mile long. After passing the foot of Treat’s Island down to what is now Smith’s bridge it was dead water half the way, and then the 841 current began, and passing under Smith’s bridge there was plenty of good current. Passing the mouth of the DuPage there is a good, heavy, swift current. After that the current slowed down until I got about to the cut-otf, and there it is ]>rac- tically dead water until you ]>ass the a({ueduct. Prom the aque- duct to its mouth it is good water until you get to where the old dam was and there there was a narrow channel through. I should say there was at least three feet of water there. Below that you entered into about a half mile of bowlders, about three feet of water in depth between the bowlders. Q. At the mouth of the Desplaines isn’t the current very rapid, boiling? A. I should not say so; there is a good heavy cur- 842 rent above the mouth. Q. And the water is in waves from the rapid declivity? A. Unless it was high water it was not, but since the drainage canal turned their water in, why, it is. Q. Was it worse in low water ! A. If it was as you describe it, I would have smashed a boat there, and I have been through there a thousand times, I guess, and I never smashed a boat there yet. If a man did not understand a boat I don’t think he had any business there. Q. The man who attempted it was considered somewhat of a dare-devil! A. No, I don’t think so. I never heard of people being capsized there. I never was. I ran right through there at the mouth of the Desplaines without any trouble, did not hit 843 a rock on the passage. Went a clean shoot from here down there. I came up on the canal in ’85 because it is easier to pull a boat in dead water sixteen miles than to pole it up against 396 Clement, — Cross-Exam. — Continued. the current. I could have brought it hack by the river. I would have paddled it and poled it and rowed it. Q. Do you think you would have had to get out and pull it? A. Well, I have done that at Treat’s Island. I have brought it back without getting out hundreds of times. I have paddled a boat up that stretch of the river from the aqueduct to the mouth of the Desplaines right up the current. The current was not 844 too swift. I paddled about as well as an Indian. There is no trouble of going up that stretch of river. I have been down there with boat-loads of passengers who were green and could not help me any at all, hardly, and I got up the river from the junction to Joliet as far as Brandon’s bridge. I have done it time and time again. Sometimes I did get out of the boat. It was easier to get out and pull a little than it was to work in the rapids. It is not a fact that just below the junction of the rivers there was not sufficient water to float a boat or that it was necessary to one going up or down that stretch to get out and pull the boat along. I never had any trouble of that kind. There is a place down below the junction about a mile and a half where there are some sand bars. That is in the Illinois Eiver. I have got into difficulties there. It is not a fact that at 845 Treat’s Island at most seasons of the year you have to get out and pull the boat by hand. I will pull a boat up there with oars or a paddle any time. My boat drew about fifteen inches when it was heavily loaded. My boats were good 846 grades of row-boats, $50 row-boats. I remember the depths of water as far back as 1865. There was more water after the deep cut went in in 1872, I think. I have paddled a row-boat from the mouth of the Desplaines Kiver up the river to Mal- colm’s dam between the years 1865 and 1871. I would not say that I did it without ever getting out of the boat. It was done for pleasure. Q. Have you stated to any one within the last thirty days that it was perfectly absurd to contend that the Desplaines Eiver was a navigable river! A. I don’t think I said that. 847 I made the remark that I understood that the Desplaines Eiver was not a navigable river, and that the Su])reme Court of this state had determined it was not navigable. 397 (At the trial, counsel for complainant moved to strike out the answer ‘‘I don’t think I said that” and the volunteer statement which follows that ‘‘I made the remark that I understood the Desplaines River was not a navigable River, and the Supreme Court of this state determined that it was not navigable.” Motion overruled.) (Said ruling appears on Trans, pp. 2597-8.) Q. And did you not in that connection state that you knew of your own knowledge it was not navigable, because you had ])een obliged to get out and pull a row boat, even in places in the Desplaines River? A. I don’t remember saying that. I would say it now, because I have got out. (At the trial the counsel for the complainant moved to strike out the above answer on the ground that it was not respon- sive. Motion overruled.) (Said ruling appears on Trans, p. 2598.) Q. As a lawyer and a man who is familiar with the Des- plaines River, and knowing that the river is not a navigable river that is capable of carrying commerce in the ordinary way in which commerce is carried on ; I ask you whether or not in your opinion the Desplaines River is a navigable river? Counsel for Complainant. The question is objected to, as not cross-examiantion, and as embracing elements of supposed ^ legal determination by the Supreme Court, which should be sep- arated from the question; so that that element can be judged of separately. The witness probably refers to the case which has been cited 'by counsel for defendant in the argument for an in- junction in this case, in which it is stated in the opinion of the court that it was stipulated by the parties that the river was not navigable, and which is the only reference to that subject which occurs in the decisions of the Supreme Court; where the owner of the dam on one side, and the Commissioners of the canal on the other, which desired to obtain and make use of the water of the river; one for the purposes of his mill, and the other for the 848 purposes of their canal ; and where the parties having mutual interest that the river should be considered as non-navigable, which is the only decisions by our court upon the navigability of the Desplaines River. 398 Mr. Muneoe. I object to the argument and dissertation of Mr. Starr, and move that it be stricken out as entirely improper. Witness. I have always understood that the Desplaines Kiver was non-navigable. (The trial court having ruled at a prior point in the trial that the objection of the complainant above mentioned was sustained, counsel for defendant subsequently again called the attention of the court to the said objection in connection with the direct examination. Thereupon the court ruled. Objec- tion overruled.) (Said ruling appears on Trans, p. 2597.) Q. From your knowledge of the Desplaines Kiver, I ask you, in your opinion, whether or not the Desplaines Kiver ever was or now is capable, without improvement, of carrying commerce in the ordinary way in which commerce is carried on in this country? Counsel foe Complainant. The same objection made to all the questions before may be considered to each and all of them re- peated here. (The trial court having ruled at a prior point in the trial that the objection of the complainant above mentioned was sustained, counsel for defendant subsequently again called the attention of the court to the said objection in connection with the direct examination. Thereupon the court ruled. Objec- tion overruled.) (Said ruling appears on Trans, p. 2597.) A. Why, in its present condition you couldn’t carry on com- merce. Of course, I understand you can put a flat bottomed boat on a river and put a wheel on the back end and navigate it in three feet of water. Q. That the currents in this river are such that you simply could not go up it or go down? A. I don’t think the currents are that way. Certain points in the river are too shallow for it, even now. (At the trial, counsel for complainant moved to strike out the above answer as not responsive. Motion overruled.) 849 I have never seen any fences across the Desplaines River at any point, and I have been down the Desplaines Kiver every year from 1865 to 1899. I heard the first time I went down in 1865 that there were fences across the river down near tlie month of the DnPage and that it was dangerous to run there and strike those fences, hut I went down and I didn’t find them and I never did. I don’t know that there were any fences maintained during that period by Mr. Adler at Sinitli street, nor l)etween Soutli street and Brandon’s road. I liave gone down tlie J)esplaines Kiver in times of high water. There was no difficulty then. 850 It was easy then. I did not come up. There was too much current. I could row my boat up. I would be willing to bet I could. I did not want to. Re-direct Examination. Q. Your statement on cross-examination of your opinion as to the non-navigability of the river is meant to apply to the river without improvements in the respect you mention in your direct examination by the removal of boulders and excavations? A. No, sir; I always understood that the river was non-navigable. I don’t know exactly what navigability means, to tell the truth. I have always understood from other attorneys, that the decisions of the Supreme Court were always that it was non-navigable, and I always regarded it as that. But not having any clear idea 851 in my own mind what navigability means, I haven’t got any. Q. And having given your impression from the statements from other attorneys, you were repeating opinions so obtaineds in answer to Mr. Munroe’s question? A. Yes, sir; I never have looked it up. Q. You don’t mean to be now understood as expressing an opinion of your own on that subject? A. I have no opinion. Jefferson street dam is gone out, the drainage people took it out about 1898. The old dam near Treat Island was across one branch. There is none showing there at all except that the 852 water was shallow at that point. The other shallow point was incident to an old dam about three-quarters of a mile below the aqueduct. There is nothing there to show what kind of a dam it was, nothing more than there were rocks there, did not show above the water. 400 Re-cross Examination. There is a very heavy current at McDonough Street since the dam was taken out. Q. Assuming that dam number one was not in the river— A. That is the dam up above here? Q. Yes, sir, that is the dam that the Economy Light & Power Company now has; and solely upon your knowledge as to the conditions in the river, I will ask you to state whether or not in your opinion the Desplaines Eiver is capable, in its present state, of carrying the commerce of this country up and down the river? (Objected to as not re-cross and because the witness has de- clared he has no opinion and because of indefiniteness and as 853 irrelevant, incompetent and immaterial. A. The rapids at the Saulte Ste. Marie are 16 feet fall there in a mile; and the rapids are so stiff there that nothing can go up except in places by professional Indians with poles. It is a rapid, the worst in the country. And the fall through here to the head of Lake Joliet is nearly double that amount. (At the trial, counsel for complainant moved to strike out the above answer as not responsive. Motion overruled.) (Said ruling appears on Trans, p. 2598.) Q. I understand, you then answer my question by saying no? A. If that dam was taken out, it would be a raging rapid, with double the fall of the Soo rapids. (At the trial, counsel for complainant moved to strike out the above answer as not responsive. Motion overruled.) (Said ruling appears on Trans, p. 2598.) Q. And could not be used for commercial purposes? Counsel for Complainant. I object. A. If there was water enough, you could go down a-kiting, but you couldnT get up. Counsel for Complainant. We will enter a motion to strike out the re-cross examination.) (Ruling on said motion at the trial of said cause: The Court. I overrule these motions on the ground that these 401 ^‘motions to strike out are not made in time. Eef erring to the specific motions made in the trial court to strike out specific answers under the general objection ‘‘to strike out the whole re-cross examination’’ made at the taking of the deposition. Said ruling appears on Trans, p. 2599.) William W. Stevens^ a witness for complainant, testified as follows : Direct Examination. My name is William Wallace Stevens; my age 78. I have lived in Will County since November, 1855, was born in Eumford, Maine, came to Illinois in November, 1855. My first place in Illinois was at the Old National Hotel. My first work was teaching school 855 in Dresden, Grundy County. I went down there the same month I came. I finished that school in March, ’56, and came back here until September. I read law with Parks & Elwood here in Joliet and became a lawyer. I have been an editor of the Joliet Eecord from 1880 to 1900. I have made a study of the his- tory of Will County and published a book on the history of Will County. There was a histoiy of Will County published prior 856 to mine. It was prepared by George H. Woodruff. He was one of the old residents of the city here. He came, I think, in the spring of 1834. I knew him well from the time I first came here until his death in 1890. As matter of current repu- tation and history of Joliet and WTll County I was acquainted with the standing and acceptation of the history that he pub- lished. It was of good standing. He has a name as a his- 857 torian since publishing that book. This book, marked for iden- tification Complainant’s Exhibit 2, is Woodruff’s history of Will County that I have referred to, and was published by Wil- liam LeBaron, Junior, & Company, 186 Dearborn Street, Chicago, 1878. I did not know Perrin or Hill. Mr. "Woodruff was the first recorder of Will County. Passage from page 607 introduced in evidence as Complain- ant’s Exhibit 2 as follows: 858 “The Kankakee being navigable for small steamers to the eastern point, an outlet is thus furnished for the upper por- tion. Though navigation has been improved by the building of dams at Wilmington, it has in reality been used for that purioose during wet seasons since the earliest settlements of 402 Stevens, — Direct Exam. — Continued. ‘‘the adjacent country. As early as 1834 the products of the farm were boated down the Kankakee to the Desplaines and up the latter river to Chicago. It is related that during the year named some parties loaded a boat on Sugar Creek, a tributary to the Iroquois with 300 bushels of oats, 300 bushels 859 of wheat, and some hams, with the design of taking them to Chicago to supply the garrison stations there. The trip down the Kankakee was accomplished without accident or unusual trouble, but after entering the Desplaines, when near Treat’s Island the boat di]>ped water and so dampened the grain that they were obliged to unload and try to dispose of their produce at that point. At the time settlers were arriving in that neighborhood quite rapidly and they had no trouble in disposing of their whole cargo, the oats at 50 and the wheat at 75 cents per bushel. At present small steamers owned by Messrs. Small of Wilmington and Stephen F. Hanford, of Warner’s Landing ply regularly between these points and Chicago, carrying to that city corn, oats, rye and other prod^ nets, and bringing back lumber, salt and other heavy articles. The “landing” which is located near the eastern point of the township is considered the head of navigation during the dry season, but when the river is ordinarily full boats can run much higher.” The title page and preface of the book are as follows: 861 “The History of Will County, Illinois, containing A History of the County — Its Cities, Towns, &c., a Directory of Its Real Estate Owners; Portraits of Early Settlers and Prominent Men; General and Local Statistics; Map of MTll County; History of Illinois, Il- lustrated; History of the Northwest, Il- lustrated; Constitution of the United States, Miscellaneous Matters. &c., &c., &c.. ILLUSTKATED. Chicago : AVm. Le Baron, Jr., & Co., 186 Dearborn Street, 1878. 862 PREFACE. ]n ])resenting our History of Will (’ounty, we deem a few prefatoi’y words necessary. We have S])ared neither pains 403 nor expense to fulfill our engagement with our patrons and make the work as complete as possible. We have acted upon the principle that justice to those who have subscribed, be they few or many, requires that the work should be as well done as if it was patronized by every citizen in the country. We do not claim that our work is entirely free from errors; such a result could not be attained by the utmost care and foresight of ordinary mortals. The General History of the County was compiled by Hon. Geo. H. Woodruff, of Joliet, and the Township histories by our historians, W. H. Perrin and H. H. Hill. Some of the Township Histories are indeed longer than others, and have been the scenes of more import- ant and interesting events. While fully recognizing this im- portant difference, our historians have sought to write up each township with equal fidelity to the facts and information within their reach. We take this occasion to ])resent our thanks to all our numerous subscribers for their patronage and encouragement in the ])ublication of the work. In this confident belief, we submit it to be the enlightened judgment of those for whose benefit it has been prepared, believing that it will be received as a most valuable and complete work. The Publishees. ” 863 This book you now show me is a bound volume of the Joliet Signal for the years 1846, 1847 and 1848. It is kept in the public library and is a part of the public library of Joliet. The library label of the book is, ‘^Joliet Public Library. Eeference Book. Not to be taken from the library. Class No. E071JS. Ac- cession No. 1057.” I was acquainted with the Joliet Signal as a newspaper from the time I resided in Will County. It ceased to be pub- lished in 1900. It was published regularly as a weekly newspaper at the time I came to Will County and 864 continued to be all the time up to 1900. It was a news- paper in general circulation in Joliet and Will County at that time. My information from the current reputation and history of Joliet and Will County is that that paper was in general circula- tion in Joliet and Will County in the years 1846, 1847 and 1848. Complainant’s Exhibit 3 offered in evidence appearing in the paper under the heading ‘Moliet Signal, Joliet, Illinois, Tuesday, * June 8th, 1848.” (Eeading) : ''Appalling accident. Ten Men Drowned. It becomes our duty to record a most painful accident which happened yesterday morning, about fourteen miles south of 404 W. W. Stevens, — Direct Exam. — Continued: this place, on the Desplaines. A boat containing sixteen men was sunk, and only six of the number were saved. ^‘It appears that they were at work on the canal, and board- ed on the opposite side of the river, and when returning from their breakfast, the boat was sunk by a yoke of oxen which 865 was on board becoming ungovernable and moving so near one end as to cause it to fill with water. It was just above Beard’s mill, and in about twenty feet of water. We learn that the bodies have been recovered. ‘^It is reported that C. Delmore, John Dougherty, P. O’Neill, Turner, Jas. Dunn and Chas. Kelly of this place are among the drowned. The names of the oth- ers we have not learned. Five of those who made their escape were from this place, viz: David Major, J. Kelly, J. Mulhol- land, C. Stevens and James Davilin.” 866 I have made a study of the early history of northern Illi- nois and Will County. I wrote the book which was published by S. J. Clark & Company, Chicago, in 1907, entitled ‘‘Pasf and Present of Will County, Illinois”. I knew the late George H. Woodruff well ; I heard him lecture on that subject. 867 I have been connected with the Will County Old Settlers’ Society, the Will County Pioneers’ Association a good many years, and I have been president. It was organized in 1880 and has continued in existence to the present time. I united with it about fifteen years ago and have been an officer all of the time since. It had about 150 members when I joined. I was personally ac- quainted with the greater portion of them at that time. 868 Mr. Woodruff, whose lectures I have heard, was a member of the organization. The lectures were printed in his life time in the Joliet Eepublican here when James Goodspeed was the editor, and were afterwards published in book form and bound in with another book. I have a copy of the book here. The book Stevens Exhibit 4 was printed in 1875. I have had the book all the time since then. It is entitled ‘‘Directory of the City of Joliet for 1875, etc.” 869 At the end of the book is a supplemental title page reading as follows: “Forty years ago. A contribution to the early history of Joliet and Will County. Two lectures delivered before the Historical Society of Joliet, by George H. Woodruff, Decern- 405 ber 17, 1873, and March 24, 1874. Published by James Good- speed, Joliet. Joliet Republican Steam Printing House, 1874.” On the reverse side of the title page is a copyright memorandum as follows: ‘‘Entered according to the Act of Congress in the year 1874 by James Goods^jeed, in the office of the Librarian of Congress, Washington.” On page 5 is the title : “Lecture 1. Delivered at the Central Presbyterian Church in Joliet, December 17th, 1873.” I was present. I heard one of the lectures. I am quite certain it was the first. I don’t know but I heard both of them. I pre- sume I was present at both. The house was pretty nearly filled. There must have been five hundred probably present, 870 embracing the Old Settlers and others. Mr. AVoodrufCs state- ments were always accepted as true and authoritative on all matters of history in regard to the settlement of AVill County, and from that time forward he was known as the historian of Will County. The society to which I have referred was called also the Will County Historical Society. It is the society referred to on the title page and in the preface. The preface is by the late Judge John M. Wilson, of Chicago, who was formerly a resident of 871 Joliet. I knew him as a resident here. Counsel for Complainant. I will offer in evidence the pas- sage on pages 34 and 35 of this supplementary book by Mr. W^ood- ruff as follows : “But there was also another famous city, just over the line in another county, of which a little Dutchman, Johnny Beard, was the proprietor. Johnny thought this was to be ‘one very great city.’ He made a splendid looking one on paper, with the great Kankakee coming down from the east and the Des- plaines and Du Page united from the north, the ‘ City of Kan- kakee’ reposing in native beauty at the junction. Johnny used often to come up with his wife in a little old ‘coachee’ and was always full of his ‘city.’ He used to squeeze in a little whis- key, too; but the old horses and coachee used to take him safe home, whether he could drive or not. He dug a dam across the Desplaines, a little above its junction with the Kan- kakee (which forms the Illinois), and commenced building a mill. But the next spring the Kankakee, which drains a greai extent of country far to the east in Indiana, got on a rampage 406 JV. TV. Stevens, — Direet Exam.— Continued. long before the Desplaines, which rises much farther in the north, and coming down with its great volume of water and ice, dammed up the Desplaines — turned its current northward, and sent Johnny Beard’s dam, city, mill and all, a kiting up to Treat’s Island, where it deposited the fragments. This was the last we heard of ‘Kankakee City,’ until some of our citi- zens ‘struck ile’ there a few years since, and sunk a well, — and sunk a little pile of money too.” 872 Counsel for Complainant. I will also offer in evidence the passage on page 14, reading as follows : “John Norman built a mill on this river” — the reference is to the Desplaines Eiver — “at the head of an island which took his name, just above the penitentiary. He built a dam across one ])rancli, which threw the current into the other, in which he placed his wheel, while the shaft at the other end connected with the mill gearing in a log mill.” I omit various passages. “I remember visiting this mill in 1834. The island was then quite a romantic spot, being covered with a heavy growth of timber. The digging of the canal has almost obliterated the locality.” Counsel for Complainant. And on page 15 I offer a statement introducing a list of names as follows : “The following are the names of othpr settlers in those localities now included in the Town of Homer, and that part of Lockport east of the river, and which were known in early days as ‘Yankee settlement,’ ‘Gooding’s Grove,’ and ‘Had- ley.’ ” (On page 378, infra, to avoid encumbering the record by attach- ing the Joliet Directory to the deposition, complainant’s counsel gives notice that he expects to read further from that book on the hearing and will keep it accessible to counsel, and withdraws the at- taching of the book as a whole to the deposition.) 874 Q. Where did you live when you first came to Will County, Mr. Stevens? (Ruling on said question by trial court.) Counsel for Complainant. Shall I read all of the objections! Counsel for Defendant. I understand all these objections are reserved. The Court. Just mention the fact. They are all reserved. Counsel for Defendant. These questions and answers, if your 407 Honor please, about the portage, we move to strike out because he does not purport to state what anybody told him and he does not show that he knows anything about the portage. The Court. I understand. (Said ruling occurs on Trans, p. 1935.) Temporarily I taught school at Dresden, Grundy County, in the winter of 1855, near the junction of the Kankakee and Des- 875 plaines. I returned here early in March, 1906. I taught school in Channahon in the fall of 1856 and finished out a school in the Aux Sable in Grundy County. I was admitted to the bar of Illinois in March, 1859. I am acquainted with the current reputation and common report as to the early history of the use of the Desplaines by early settlers and explorers, that is, the current reputation and common report in existence when I came here. I inquired a great deal. I was on the river a great deal and talked with a great many of the early settlers in regard to the use that was made of the river before the opening of the canal. Q. What was the current reputation as to the early use of the river as you so obtained it? (Ruling on said objection by trial court.) The Court. The current reputation as to the use. Its reputa- tion in 1856. That is, what did the people say in 1856 as to what had been done twenty or thirty years before! Counsel for Defendant. Yes. Most of those people who were living there in 1856 are living now and are witnesses in this case ; a good many of them. The Court. It is a pretty old community, doubtless. Counsel for Defendant. I move the questions and answers be excluded. The Court. I will let it stand. You want to make them as dead as most of the people there. (Said ruling occurs on Trans, p. 1936-7.) 876 AYhen I first came here most of the people, the early settlers, were then living, and I became well acquainted with them. I talked with them a great deal about the early settlement of the city and county, not only with Mr. lYoodruff, but with a great many 408 TF. TF. Stevens, — Direct Exam. — Continued. others, among them Mr. Daggett and Mr. Fish and the Schermer. horn family at Channahon. They came in 1833 or ’4. I boarded with them in Channahon. Q. State in a general way what the current general reputation was on that subject as you received it from them? (Objected to as hearsay.) 877 A. The current reputation was, up to the time of the open- ing of the Illinois and Michigan Canal, that the river was used more or less for transportation, certain portions of it. I heard of the lower part of the river being used for carrying lumber. Parties themselves told me they brought lumber up and brought it down to Kankakee and up the Desplaines to the mouth of the Du Page and then up the Du Page to near their place there at Channahon. I was told that by John S. and Edward H. Jesup. I knew them well; was often at their house and talked with them. They lived right on the bank of the Du Page, about one hundred rods from its mouth, or practically at its mouth. It was dead 878 water from the mouth up to that point. They came in 1834 as young men with their fathers. (Objected to as not being the witness’ own knowledge.) When I was teaching school there it was the fall of the year. I used to go hunting considerable, and Edward used to go with me. He took me over to what was called the cut-otf and then I first heard of their bringing lumber from Kankakee or AYilmington down the Kankakee and up the Desplaines, and he showed me where they used to cross over in high water from the Kankakee over in the 879 Desplaines through the cut-off. That was before the canal or feeder was built. He told me how they got it. There was no mill at that time. Treat’s Island mill was not built until several years afterwards, and Wilmington was the only place they could get lumber for use there in Chamnahon. He said after they came there with their father, Isaac Jesup, that they built a flat boat and would go up to Wilmington. When the wind was right they could sail right up the Kankakee to Wil- mington with no obstructions at all. They would load their boat and come back and if the water was high they would come through the cut-off into the Desplaines and up the Desplaines to the mouth 409 of the DuPage and up to their little lumber yard they had near their house in Channahon. If the water Avas low they would go down around and come up the mouth. He spoke of having made the trip repeatedly by both routes; that they did that two or three years from the time they came there in the spring of 1834 to about 1836 or ’7. 1837 is the time the mill was built 880 at Treat’s Island. There was a grist mill at Wilmington at that time and the only mill anywhere around there. They would carry grain up to the mill on a boat. They car- ried it not only for themselves but for others from farms in that vicinity. The lumber was mostly hauled for others, as I understood it. They got lumber as it was needed. They were building there a good deal at that time. It was a flat bottom boat as they told me. My recollection is that it was 25 to 30 feet long and 8 or 10 feet wide. They 881 would bring down with them from four to five thousand feet of lumber at a time. My recollection is that it drew from 18 inches to two feet loaded; when it was light it wouldn’t draw over 8 or 10 inches. I never heard them say that they had much of any difficulty in navigating the river as it was then. Edward and John Jesup both died a good many years ago. Their father died fifty or sixty years ago. I knew the late Mr. Henry Pish in his life time. He told me that he had a saloon at the Aux Sable locks, at the mouth of the Aux Sable Kiver Avhere it crossed the canal. IVe 882 used to joke with him about his tapping his barrel at each end. He told how he got his whiskey dowm there, and as I under- stood it from him nearly all the time he was there it came down in boats from Chicago. That was the first time I ever heard about the cut-off down there at Chicago from the Chicago Piver to the Hesplames. There was a cut-off there where they went through in high water. There was a portage when there was not high water and a water communication when there was high water. Q. Who told you that! A. He told me that. Q. Who! A. Mr. Fish. 410 W. W. Stevens, — Direct Exam. — Continued. (Ruling on said question by trial court. Objected to. Over- ruled.) (Said ruling occurs on Trans, p. 1936.) That is what Mr. Fish told me. He said they could bring from four to eight barrels of whiskey at a time in high water by boats from the Chicago River down through the cut-olf into the Bes- plaines River and from the Desplaines down to the mouth of the Aux Sable and up the Aux Sable a hundred rods or so to where his place was. He told me they were Mackinaw boats. My recollection 883 is he said he was there several years. Mdiether he got his whiskey that way all the time or only in high water I couldn’t say. After pay day he said he sometimes sold a barrel a day to the men on the canal. 884 As I understand it it was a matter of accommodation at times that they would bring down other merchandise or what- ever they wanted, tools, iron bolts and such like. I know Swalms or Davidson’s quarry in Joliet. I knew Mr. Swalm very well. It is located about a mile and a half or two miles southwest of Joliet near the head of the lake, a little above and opposite, on the other side of the canal. It was probably 150 rods nearly from the river. I have seen the road leading from where the canal is now down to the river below Brandon’s 885 bridge many times. I think I first saw it in 1856. It was a good road across the flat there and looked as though it had been filled in with strippings from the quarry. There was then stone and other material in the road and it was deeply rutted as though heavy teams had gone down there with heavy loads. At its terminus at the river bank it came to a deep hole that was in the river at the head of the lake. There is a sort of a bend in the north end of the lake and the deep hole, and from there on down it was still water. It looked as though it had beenm land- ing place, I don’t recollect of any dock. They told me at the time, and it was the current reputation that it had been used to haul stone from Swalm ’s quarry down to the river there and load it onto boats. I don’t know what for. 886 I have used the river myself a good deal. I have been up and down the river a good many times up to twenty years 411 ago, that is, about 1885, from the time I first came here. I have been up and down with boats. I have been down with teams and crossed it at various places and fished it and hunted it a great deal. In July, August and September the water was generally low, especially when you got below Treat’s Island, but in the spring and fall there was a good stage of water always. We used a two-oared and a four-oared row boat. We had from three to six of us in the boat. There were six of us at once that went 887 down and camped below Kock liun. AVe all went down in a boat together; that was in the fall of the year, about half way up the lake from Treat’s Island, two and a half to three miles up the river. We had our tent and camp equipage and 888 provisions. It was a four-oared boat, 18 to 20 feet long. The outfit would be 250 to 300 pounds. The boat must have drawn from 18 inches to two feet of water. 889 I identified this history of AYill County by George H. AYood- ruff in my former testimony. Counsel for Complainant. I will read in evidence here page 251 of that book. (Objection as incompetent, irrelevant and immaterial.) (Eeading.) John Norman erected the first flouring mill in Joliet. * * * About opposite the penitentiary there was an island in the Desplaines heavily wooded, a romantic spot where the writer often went in search of plants and flowers. At the head of this island across one channel, Norman built a brush and gravel dam, which threw the current strong upon the other side. Near this he built a log mill. His wheel was placed in the current and the shaft running into the mill turned the machinery which ground the grain.” Counsel for Complainant. I also give notice to counsel on the other side that we expect to read from this book more at large at the hearing. 890 The Joliet Directory of 1875 (in which the Woodruff lec- tures are published) was in general use and circulation in Joliet in the year 1875 and the years following. It was the only one published at that time. I don’t think there was any one pub- lished after that until 1881, ’2 or ’3, somewhere along there. I 412 ir. ir. St evens,- — Direct Exam. — Continued.. liave always taken and preserved the directories. I have a large number on hand now. This directory was in general use and circulation from 1875 to 1880. There was no other in use. I know Alexander’s quarry. I have been there twice since 891 the first testimony was taken in the case in January. Mr. Johnson and Mr. Anderson went with me the last time. AVe went to examine the quarry. M^e went all through it, from one end to the other, examined it thoroughly, and saw the floor of the quarry. There were leaves on it, hut no indication that it had ever been excavated lower. They measured the stones. My recollection is that twenty inches, I don’t know, twenty inches, or perhaps two feet, was the thickest. I didn’t pay attention to that. They attended to the measurements and I looked after some other things. We also counted the piers of the Kankakee aqueduct. I had 892 a man take a boat and we went out all around the piers and across the river. The thickest stone in the piers were 26 inches thick. There was no stone as thick as that in the quarry. There was no indication of any ledges thicker than 20 inches, I think it was. I have known the witness Comstock well for forty or fifty years. I had a conversation with him on the subject of bo/ its coming up the Desplaines Eiver. Q. You may state whether or not he made any statement to you as to boats coming up the Desplaines Eiver and the method by which they came up? (Objected to as immaterial and improper.) (Euling on said objection by trial court.) The testimony of what Mr. Comstock may have said to him was held inadmissible, and thereupon, the residue of the deposition to end of the direct examination was omitted. Counsel for Defendant. It seems to begin with “Q. Do you know when Mr. Comstock came to AVill County — .”( read- ing) That deals with the other incident. Counsel for Complainant. Yes, I think you will find a great number of those. It goes on to the bottom of page 259, and if you are going to leave out that Comstock portion, you certainly ought to leave out from the beginning of the 41 :] cross-examination down to the question on page o59 where it says ‘‘Do yon remember along in the — I think in fairness, if counsel is going to omit the cross-ex- amination, he should omit the three or four questions x^reced- ing the questions and answers, all of which are, “ Do you know Comstock!’’ “Was he a good man?” etc. Counsel fok Defendant. I think that point is well taken so that it should he left out fi*om the l)eginning of the cross- examination and commencing on page 359: “Do you remem- ber having an interview within tlie last two months or so with Mr. Charles Kercheval and Mr. Charles A. Atunroe?” (Said rulings a|opear on Trans. ]). 1941.) Said omitted portion of said deposition is al)stracted as fol- lows : He came to my office one day and T asked him if he knew any- thing about boating on the river. He said he didn’t know any- thing about the river anyway, that he was hardly ever on the river, but had surveyed uj) and down the banks and knew some- thing of it. We talked for perhaps half an hour. He was very deaf. I had to halloo in his ear. I asked him if he didn’t 893 know anything about boats carrying stone down the river, and he said he didn’t. I asked him how they got those large boats up over the rapids at Treat’s Island. “A¥hy,” says he, “they warped them up; they put a tackle, fastened at the end of the bow of the boat, and they would take the tackle away up the river and tie it to a tree and draw the boat to that and take the tackle up to another tree and work on over the rapids.” “AYell,” says I, “how long would it take them to get up over the rajuds there?” “Well,” says he, “it would not take them over half an hour.” That conversation was probably four or five weeks ago. (Testi- mony was being taken March 4th, 1908.) (Bight of further examination in direct of witness Stevens is reserved, but he is submitted for cross-examination because coun- sel have expressed a desire to cross examine him this afternoon.) 894 Cross-Examination. I think Mr. Comstock came to MTll County with his father somewheres about 1834 or ’36; I don’t know exactly. He has been here some twenty-one years longer than I. 414 I never noticed anything wrong about his faculties except his hearing. I was asking him if he knew of boats carrying stone down the river to the aqueduct and he said he didnh. Says I, ‘^Did you ever know of any boats going up and down the river!” And he said ‘^No, not j^articularly, ” or something of that kind, and I don’t know whether I said it to catch him or how it was, Init I wanted to know if he did understand anything of it, and I asked him that question, that I didn’t understand how they ever got those big boats back over the rapids there. 895 Q. When he was describing the warping of boats wasn’t he describing how it was done on other rivers! A. Well, he might have so understood it, hut 1 particularlii mentioned get- ting the boats hack over the rapids at Treat’s Island. Q. He might not have heard you say Treat’s Island! A. Well, he might not ; but I said it nevertheless. He might have under- stood it in that way, but I certainly asked him, that I didn’t under- stand how they got those big boats back over the rapids at Treat’s Island, and he said they warped them up. He was not talking about any other part of the United States. We had not talked of any other river than this one. I had not asked him about any other river and he didn’t talk about any other river that I recollect of. I might have asked him about the Kankakee, but it was about this river here, how far up and down the river he had been and all. He didn’t remember of any boat going up and down and he said he hadn’t heard of boats carrying stone dowm 896 the river. He answered me readily and I understood it to mean that he understood what I asked him, because he was a man of intelligence. Yes, Mr. C. A. Munroe and Mr. Charles E. Kercheval came to my office last month and talked about my affidavit and knowledge of the river. My statements to them were correct. I had no 897 desire to attempt to conceal anything or fool anjffiody. I was describing the thing as I believed it and understood it at that time. I discussed the fact that one of the Jesup boys had brought some lumber down the Kankakee Eiver to Channahon. My recol- lection is that he was eighteen to twenty years old when he came there and his brother was older, about twenty-four. That was in 1834. That conversation with me was when I was teaching school 415 there at Channalion in the fall of 185() and 7. I commenced tliere the first week in September and taught until along in January. I went hunting with Edward several times. It was when we went over the cut-off to hunt he used to tell me what a splendid place that was. 898 I don’t recollect going to the cut-off with Air. Jesup but once or twice. I went with several ]>arties there. It was very convenient to go v/ith him as he lived right near there and had a boat. We would go down the DuPage into the Desplaines then the Desplaines to the cut-off, and up that. The testimony I gave was, as I recall it, the substance of what the two Jesups told me in the fall or winter of 185(i-7. I recall of one or two other parties there going with them and carrying grain to get ground, and they would help navigate the boat to pay for their passage. I told Kercheval and Alunroe that Air. Jesu}) told me of carrying grain to AVihnington, but not on a wagon. 899 I am positive that I never mentioned a raft to them directly or indirectly. I think it would be almost impossible to float a raft up the Desplaines against the current. I didn’t say to you that that was the only time that Jesup used the Kankakee or Des- plaines. There were two Jesups. I recall staying at Air. John Jesup ’s house several years afterwards and in the evening he told the story of his early life there in Channalion and how he spent his time and about his bringing lumber fi*om AVilmington down the Kankakee. That is John Jesup. Edward was a younger brother. His father’s name was Isaac Jesup, and after he came there with his father they built a small flat boat and used it for that purpose. Nobody told me about the dam at the mouth of the Des- 900 plaines Eiver. There was not a dam there. That was in 1834 and 1835. They didn’t get any corn ground, as I understood it, except when they carried it for other parties. I don’t know; they might have carried some for themselves, but other parties would go with them and they would help navigate the boat and they would bring their grain. Q. AVho went with them? A. I recollect Air. Isaac Schermer- 416 Stev ens, — C ross-Exam . — C ontinued. liorn; I boarded with him. He told me about going to Wilmington through the cut-off. It enters the Desplaines on the east branch within a mile 901 north of the aqueduct. They told me they brought their boat down the Kankakee Eiver and up the Desplaines when the water was too low in the cut-otf. The saw mill at Treat’s Island was commenced in 1836 and finished in 1837. The grist mill was built shortly afterwards. I got that information from parties who knew. The Jesups told me that after the saw mill was built at Treat’s Island they didn’t have to go so far for their lumber. My recollection of it is that the saw mill was commenced in 1836 and finished in 1837. 902 M^hen I first came here in 1855 I saw the end of an old dam on the Desplaines Eiver there at the mouth; I never heard of a dam there except one that was built in the fall and went out the next spring. That is a historical fact, I never could find out that there was any dam there that amounted to anything and lasted long. There are some of the boulders of the foundation there still. 903 I have seen it many times. I don’t recollect much about it. I recollect some logs sticking into the bank on the north side of the river and some boulders lying on the logs. That was probably fifty years ago. It was a little ways up, might have been a hundred rods or a half mile from the mouth; it was between the aquediu^t and the mouth. Mr. Fish told me he brought his whiskey down the Desplaines Eiver; it was in the spring of the year and it was practically im- possible to get to Chicago and back with a team. Teams did 904 do it in the summer time when the water was not high. There were no bridges across the sloughs and flat places, and they couldn’t get to Chicago with a team except when the water was low and when the ground was dry. I have got that information from many a person. I couldn’t give the names of any persons. It was general conversation that there were several months in each year it was impossible to get from here to Chicago with a team. I asked Air. Fish how he got his whiskey down there when the roads were bad, and he said they brought it down in boats. AVhether it 905 was more than one time or forty times I couldn’t tell. I couldn’t give the year. I think he went there about 1837 or ’8, 417 and lie was there three or four 3 ^ears. I talked with him several times about it. He didn’t talk about how they got the boats back; they might have sailed it back or warped it back, as Mr. Comstock described. I didn’t see Woodruff’s manuscript before it was printed. My knowledge as to Mr. Woodruff writing these books is what he told me. He told me he had written that, that is, the history and 906 the lectures. He came to AVill County in 1864. The passage in it that said 1878 ‘Mioats are now plying be- tween Wilmington and Kankakee City and Chicago, carrying 907 grain,” went this way. They went down the Kankakee Eiver through the Kankakee lock, what is called the upper lock there above the feeder, into the feeder, down the feeder into the 908 canal and right up to Chicago. They didn’t go into the Des- plaines Eiver except in the basin, but in 1834 — as to the stone from the quarry I said 1 was told they were loaded onto boats and taken down the river. I said I understood that they were used in building the aqueduct piers. 909 I don’t recollect the names of the persons that told me. I used to live down there. I didn’t see the stones shipped up. I made an affidavit in this case about the 20th of December. There was one mistake in date in it which, when you called my attention to it I had corrected. It said 1855 when it should have been 910 1835. It should have stated it as information and belief. I heard these boats were loaded with whiskey and loads of corn. They were Mackinaw boats. I have seen a great many of them. 911 Mr. Fish told me they brought down three or four barrels of whiskey. He may have told me the size of the boats. He said it was brought down for him. I never heard of teams going back and forth to Chicago every day from the Aux Sable. I never knew of a stage being built so as to carry a barrel of whiskey. It was about twenty years before my day, some of it. When I hear 912 good men tell me things that are true I take it for granted it is a fact, especially such a man as Mr. Woodruff or the Jesups. I knew them well. I cannot at this late date describe every instance that I have heard of the river having been used for commercial purposes, not at this late date. It is too long ago. Personally I don’t know of the commercial uses of the river. I did not say that 418 tlie boat coming up to Treat’s Island and Fish carrying his whiskey down and Jesnp bringing his lumber were the only instances I knew. I said I knew those as instances. 913 I have heard of the rafts coming down ; I have heard of boats coming down. I can’t remember for fifty years any better than yon can. Mr. Woodruff’s lecture was not over thirty-five years ago. It is only what they told me, what the two Jesups and Mr. Schermerhorn and Mr. Fish told me and whaf I got from Mr. Wood- ruff’s lectures and his book. There is no impression about it. 914 I take that to be a fact. Yes, I make the statement now that the river was commercially navigated for at least six months each year. I am employed by the State of Illinois in this case. I was first retained some time in November. I have been interviewing wit- nesses and procuring witnesses. I have got a few. I went down to see Mr. Feed at Stark County; I went to Aurora and some other jdaces. I suppose I am in their pay. They haven’t said any- 915 thing about it and I haven’t asked them. Mr. Riley asked me to attend to this. He is the representative and he said he wanted I should take charge of it and would see that I got my pay, but I haven’t got anything yet. Directory withdrawn from attachment to the deposition and no- tice that complainant would read further from it at the hearing and keep it accessible. Harlow H. Spoor, a witness for complainant, testified as follows: D i rect Exa mi nation. 916 My birthday was July 3, 1820. I was born in Lyons Town- vship, Ontario County, New York. I landed in Chicago and came to Kendal County September 20, 1844. I took up my residence in Will County, Jackson Town- !)17 ship, as a school teacher November 2, 1844. I made a settle- ment there in the spring of ’44, bought real estate there, made my residence there until ’54, when I came to Joliet. The attention of the witness is directed to the item from the Joliet Signal, June 8, 1847. Asked whether he knew of that 918 event. ‘H recollect of hearing of it at the time.” 419 The attention of the witness is directed to the passage read from Woodruffs History in the deposition of Mr. Stevens, about the boat coining up the river with grain and di])])ing water at 919 Treat’s Island. I remember of hearing of tlie circumstances, it was the current report by men that I believed to be truthful and had no interest in it other than that. 920 I knew George W. Eeed. He had a farm about three miles from where I lived. It was in Reed’s grove. His father held a good deal of property in Will County and held a farm there. He inherited it from his father. I was acquainted with him as a young man, grown. I taught school at Jackson’s Grove. I knew William Goodingy 921 the chief engineer of the canal, by reputation, not jiersonally. I knew Mr. Matthewson, the surveyor on the canal, very well. Cro ss-Eoca m i n at ion. I did not have to go to Chicago before going to Jackson’s 922 Grove. I went to Chicago in 1845. I went afoot part of the way and got a ride with a man with a load of grain. I followed the river part of the way on the west side. There was a wagon road. We met some teams. They hauled their grain by wagon. I don’t thing they hauled it by boats because they had no way of hauling them. I don’t know that I ever heard of a boat going from Joliet to Chicago on the Desplaines with grain or merchandise, that is not about their going through the whole length of it, only this circumstance about the boat load of grain I was telling you 923 about. That was common report at the time. I know some- thing about the rivers. I crossed the river at one time, and only once I guess at the mouth of the Desplaines where it goes into the Kankakee I crossed in a buggy. In some places it was pretty deep and some of the places it was rather shallow. There was a fording place there and they had stones marked out to show the drivers the current there. There is no other boat that occurs to me now directly except that one circumstance. As to the men being drowned about June 8, 1847, I knew 924 it only by report. I never was in the Desplaines River in a boat myself. I saw some of them in Lake Joliet and down 420 below there. They had a saw mill at the foot of Treat Island. I saw them working on a dam on one side of the river to turn the water on the other side of the island for a saw mill. They used to have a mill there and we got our lumber sawed there at the mill. The dam was across only one channel. It was across 925 the west side of the river. I saw the relic of a mill at Treat Island in 1831. It had been abandoned; it was not in operation. It was a log mill. The dam at Treat Island only went from the island to the west shore. I don’t think it went clear across the river. I first went to Treat Island in 1845 and was there several times. I went to Beardstown. I don’t recollect whether there was a saw mill there or not. I never examined the river down at 926 Beardstown. I came here in 1844 and in ’46 I went to cutting lumber to build a house and got the logs in Trautman’s grove and hauled them to Treat Island to the saw mill to get them sawed. There was a saw mill on the west side of the Besplaines Eiver. There was the remains of a grist mill that was located on the east side of the Besplaines Eiver. I could not tell exactly when I first heard about a paragraph of this kind in the book. I heard of 927 a history of Will County written a number of years ago. I forgot who wrote it. I read some of it. I don’t know that I read it through. I think I remember having read the passages that were read here about the boat. I don’t recollect any other boaf with merchandise on the Besplaines at the present time. I 928 may not understand you. I know of their building the feeder dam across the Kankakee. They had a boat they used to tow up the canal and river and across from one side to the other and then it froze and they had to put on a pair of horses and pull it out of the ice. I could not remember the precise date of the boat at Treat’s Island; I was not interested. I could not say I ever went and saw the boat. I could not tell who owned the boat. 929 I could not tell where it was going to or who built it. 421 Ukias Bo wees, 930 a witness for tlie defense, recalled for further cross-examina- tion by the State: (Objection by the defense to any testimony from Mr. Bowers except as a witness for the state.) I have never been up and down the Desplaines Eiver in boats. I have seen boats in the canal and basin here pushing boats 931 is about all. I remember along in ’49 or ’50 seeing two large boats come down the river large enough to carry three men and a camp equipage in each of them. I saw three men come along the two dams here this dam here and down to Haven’s dam. Each man had their trunk and I suppose cooking utensils and they put them on a wagon and hauled them down to Haven’s dam on the towpath and then they put them in the river again. They hauled them around the dams from above dam number one to below the lower dam. The haul was about three-quarters of a mile long. We heard that they came from Chicago and were going down to New Orleans and then to California. That is what the report was. A lot of boys followed them down to the dam when they went 932 over for curiosity. That was awfully hot weather at that time. Examination bij Mr. Munroe. They went right over the dam with their boat. There was two men rowing and one man steering the boat to keep her straight and when they went over the comb of the dam they took a jump and went off. They came down the I. and M. Canal as far as Joliet. They went down the river instead of the canal because they could float with the current faster than they could pull them down the canal. They were called yawl boats; every steamboat has them. There were two canal boats that went over. One went over the lower dam and one went over the upper dam the same 933 spring. The one that went over the lower dam broke in two. The upper one it did not hurt a particle. I helped catch her and tie her up. The one that came over dam number one went right into the canal again. The one that went over the Jefferson street dam broke in two and lodged on a little island in the river and lay there until it was broken to pieces. That is the only canal boat 422 I ever saw in the river. That one was broken to pieces by the current. I have heard of the fellows down there talking about the boat that capsized and drowned some men at the aqueduct. It was no boat, as I understand it, it was a kind of a flat boat or raft they had for fetching stone for the piers for building the 9 aqueduct. I did not see it. I have always understood that the way the boat came to sink a yoke of cattle on it backed up to the 934 hind end of the boat and sunk it so that the cattle let the boat over. My father owned a place right opposite the Johnnie Beard dam. I don’t know when that was built, but it was torn down and everything tore away. This dam that the Economy Light Power Company is building is below the Johnnie Beard dam, but it cannot be very far if it is in the Desplaines River. The Johnnie Beard dam was below the aqueduct and went clear across the river. 935 Isaac M. Johnson, a witness for complainant, testified as follows: Direct Examination. I live at 1121 Benton street, Joliet. Have lived here since ’82. 1 am a stone cutter by trade. Sometimes ran stone quarries. Have been in the business since ’79; followed it continuously since coming to Joliet. Am acquainted with the qualities and characteristics of Joliet stone. Have seen the piers of the Kankakee feeder in the 936 Desplaines. Examined them February 17, ’08. Mikarl An- derson and W. W. Stevens were with me. We went down with a team to the aqueduct, got a boat and went out and examined the piers and abutments. There were five piers and two abutments. Examined the stone in most of them. It was limestone. We 937 took samples. We also went to the Alexander quarry down there in Channahon. We could not find any layers of stone in the Alexander quarry as thick as the stone in the piers. The stone in the piers was from 16 up to 26 inches in thickness. The longest stone was five feet three inches long, 24 inches thick, 938 24 inches broad. In Alexander’s quarries we found layers 10 to 20 inches thick. We found stone in the piers 26. Some part of the ])acl< stone in the piers might be taken from the Alex- ander (quarry. There were back stones and wings there in the back filling nine to twelve inches thick, but the dimension facing stone T don’t tliiiik came from the Alexander (|iiarrv. It is my o]>inion they came from Joliet. I know the Davidson (iiiarry in Joliet, \ am acquainted with the character and quality of stone and the dimensions of the layers of stone in the Davidson (juarry. in 939 my Oi:>inion it looked like they came from there. The biggest stone in the piers I estimated would weigh about 4,000 pounds. I figured it out in cubic feet and called every cul)ic foot 185 pounds. That is the standard of Joliet limestone. There were five ])iers and two abutments; at rough measure there would be about 1^,000 cubic yards in the whole thing. We had a push ])ole to measure 940 below the surface of the water. The water there was some- thing between five and six feet deej) in two or three places. One ])lace it was 87 inches. C ro ss-Exa m iuafi oh . Mr. Stevens showed us the xVlexander (juari-y. We saw the layers there. We didn’t know whose it was except Mr. Stevens said it was Alexander’s quarry. AVe saw a man who said he rented a farm from Mr. Alexander. We asked him, “Is this Alexander’s quarry in Channahon?” He said, “Yes, this is the old quarry.” We 941 drove over a bridge over the river just a little above there. There was a fork in the roads just a little below the house. That is the only quarry I know of down there. I know about the quarry at Drummonds two miles east. That was not started until the Santa Fe road was built. I was cutting stone on the Coal City branch of the Alton in the summer of ’82 from Krohnmeyer’s quarry in Joliet. After that I heard of Drummonds. I don’t know the date it was open. It was hard to tell whether there was any stone in Alexander ’s quarry of the same quality as the stone in 942 the piers. The i^iers they say are 52 years old. It was limestone in the piers and looked like Joliet limestone. Between the stone in Alexander’s quarry and in Davidson’s quarry there might be a little difference in hardness and so on. It is all limestone. I never cut any at the Alexander quarry. I cut some at David- son’s. In my opinion it looks like it came from Davidson’s 943 quarry. Part of it anyway. I found such layers in the David- son quarry and did not find them in the Alexander quarry. Q. Do you want to be understood as saying there is no layer 424 of stone in the Alexander quarry thicker than 20 inches! A. The face of the quarry would show if it was. Q. One of the witnesses in this case has testified that he rode on the wagons of stone that came from the Alexander quarry that went into the aqueduct, and that there are layers of stone more than four feet in thickness in that quarry. A. Is that so? 944 We could see the entire face. I don’t know if there was more under where we were, but go there to-day and you cannot see anything thicker than 20 inches. It might he that the pit had filled with dirt, hut I could not swear that there is thicker layers under the dirt. It must he quite a few years since the quarry was worked; I cannot swear to it. I know about 7 or 8 years ago when I was on the Board of Supervisors we let a bridge in Channahon and Alexander took the contract and said he took the stone 945 from his quarry. It might be that the quarry hole is filled and there are layers of stone under the dirt. Mostly the further down you go the bigger the strata ; sometimes it strikes into thinner stone. We did not attempt to remove the dirt. I operated a cj[uarry up here for years, Lajmian’s quarry, and one on Cass street. 946 I run three quarries all in Joliet. Mikael Axdeeson^ a witness for complainant, testified as follows: Direct Examviation. ^[y business is working in stone quarries; has been for 23 years. I have lived in Joliet 24 years next 22nd of August. I have fol- lowed the stone business ever since I came here. I am a quarry- man. I was taken down to the piers of the Kankakee feeder and Desplaines Kiver ]\[onday, February I7th. Mr. Johnson and Mr. Stevens and I went together. IVe went first to the aqueduct piers and then over to the old Alexander quarry. We asked a man 947 in the road and he told us it was Alexander’s. I had never been there before. IVe examined the stone in the piers. AVe went out in a boat. IVe examined the stone, the grain of them, we measured them. I estimated the stone as a whole and took samples. At Alexander’s quarry we found stone from five 948 inches up to twenty. The largest was twenty inches. There was not stone thick enough in those quarries to come ii]) to the 425 stones that was in the piers. We have got lots of stone in Joliet of the same quality and the same thickness as the piers. Of course if it came from here I could not say. We got stones here in Joliet that will answer the same purpose, the same size and the same 949 quality, agreeing with* the sample we took. There was stones 14 to 16 inches there at Channahon of the same quality. We did not see any 26 inches thick. 950 Cross-Examination by Mr. Munroe. There was stone in the Alexander quarry from 6 to 20 inches thick of the same quality. I did not find any stone over 20 inches thick there. I did not see any ledge of stone four feet thick there. As you go down some layers get thicker, some thinner. I cannot say if the quarry was tilled up or not. I don’t know whether 951 there is a layer underneath that is three feet thick. The ground was frozen, there was a little dirt in the bottom, the bottom surface of the pit was clean and fresh so that we could go right down there and quarry. It was level. There was a little dirt washed down into the quarry; how much I could not say. 952 George S. Wightmax, a witness for complainant, testified as follows : Direct Examination. I was 50 years old February 13, 1908. I live at Plainfield, Will County; have never lived anywhere else. My mother came to Will County in ’31 and my father about ’33 or ’34. My mother’s name was Susan Sisson. Her folks settled on the Hanford farm a mile east of Lockport in ’31, and moved from there north of the river in ’32 or ’33. My father’s family settled in House’s Grove, Aux Sable. My father did not live close to the Des- 953 plaines until he bought the old Sisson place in ’64. My mother’s family lived right there all the time before that. The Aux Sable grove is just a little below the mouth of the Des- pl allies in Grundy County on the Aux Sable river, running into the Illinois. I have played and fished and traveled the Desplaines River from Lockport up to Goose Lake. That is a Avidening of the river. Some very muddy and stringy holes in there. I have been there on ice. It makes a stretch of four and a half miles 426 that I was personally familiar with. That was from ’64 to 954 ’88, about 20 years ago. My travels were mostly in the May- time of the year. At that time Goose Lake was too deep to wade. The river south of that would he about two feet in the shallow places and the deep ones together. I heard my mother tell several times about the raft of logs going down the river in the early days. That was before I was old enough to remember anything, and the men having little shacks for houses on the raft and they done the cooking in the house, and they stopped, I think, a day or two right there at my grandfather’s place; I don’t know how long. I heard her speak about it many times. My father and mother are both dead. 955 Cross-Examination. I don’t know where the raft came from; she said they were going down the river. I have been at the Daggett mill, but that was built after that time. I never heard anything about boats 956 carrying merchandise on the Desplaines. I never heard any- thing to the contrary. I think my mother’s people came over- land from Indiana. I never used a boat on the Desplaines except for fishing purposes. Q. Is it possible to go from Lockport north or from Lockport south during the summer months, the ordinary stages of water, without getting out and pulling your boat over the riffles every little ways! A. Not in ordinary times, but I have seen times — times I think a steamboat could go. Q. In ordinary times, exclusive of flood periods when the whole thing was washed there, that is a low and swampy country, isn’t it! A. Yes sir. Q. Excluding those times of extreme high water and taking the ordinary summer months, the ordinary conditions of water, is it possible for a row-boat to be rowed up and down the river from where your father was without getting out and pulling the boat over the shallow places! A. Well, I think that when I first went there there was more water running in the river than there is at the present time. I think the water was more, and since they used that tiling, since that was going on, that it makes the river low. 427 957 To go up and down without getting out of the shallow^ places it would have to be a row boat. In ordinary stages of water a row boat could be taken down without getting out. I doubt if you could take it up without getting out l)ecause of the current. Asked if there were shallow ])laces where it was not more than seven inches deep. “Well, it would have to be a pretty dry time if there was not more water than that. In ordinary times we could run a boat with two or three men in it, that is a fishing boat or a scow or a flat boat, as they call it, run down stream, but we never tried to work back up stream, because the cur- 958 rent would be too swift. You would have to get out and pull it up the whole distance. There was ])ools and shallows, but the shallow places would be, I should say, about six inches to a foot in depth, what they call riffles, (piite a good many of them. It was not possible to walk across the river on rocks and 959 boulders in an ordinary season, not unless it would be a pretty dry time. I have waded across the river in a great many different places. I remember one season there was not any water running over the riffles. That season the fish all died. There was water from the Lockport bridge up. By our place there was no high water, but right above Lockport where the Illinois and 960 Michigan Canal came at that time it was all dried up, no cur- rent at all. Father’s farm was right here on the map (point- ing to place marked Enshaw in the plat book of Will County. 961 Section 10, Township 36, N. R. 10 East) number 95. It had a frontage of about a half a mile on the river. We used a pole fence across the river to Fitzpatrick’s fence. His fence 962 run up along the river. That was necessary to keep cattle from going from one man’s land to another man’s land. That time when the fish died and the river was dried up was “I don’t think but a very short time.” It was in August or September as near as I can remember. The farmers’ wells were dry and they used to drive their cattle across the channel. There were two channels with islands between. The water that was in the river south of the Lockport bridge did not come from the I. and M. 963 canal; I don’t know where it came from. I always under- stood it came from up where those locks were. They put that viaduct there and carried the water through. 428 Re-direct Examination. There was a sort of tunnel or viaduct that took the water right across under the canal. It came into the river at the mouth 964 of the Lockport bridge before the drainage canal was there. It crosses right under the canal and jDOurs into the river 965 again. It is located at the main channel of the river north of Lockport. I have seen where the water comes down through there. It runs down and empties into the main channel of the river right north of the stone bridge at Lockport. The water that used to come into the swamp region above there is now carried off by the' tiles. The tiles were not there in my father’s and grandfather’s day, nor in my early boyhood days. The water runs away from this swamp district into the river much more rapidly than it used to. In the old days it run off much more slowdy. The body of water in the river in dry times is much less now 966 since the tile were put in than it used to be. Before the tile were put in the water was deeper than at the time I have described. The point where the drainage channel water, 300,000 cubic feet a minute, is turned into the Desplaines is about two miles south of my father’s place. There is a great deal more 967 water in the river from that point right now than there was before. There is more than double what there used to be. I went into the river below there once or twice on horseback down where the old mill was in the dry time, I did not go across, I waded out until the water came up to the horse’s kneees and then turned and went back. 968 As to the way that we made the fences across the stream, we made saw horses, bored holes in logs and put legs in there and then put the logs on top of those horses and hung the pole to it. A saw horse with heavy legs on the bottom anchored to the bottom and two legs on the log, the poles were laid across the horses and fixed to hold them in place. 969 Re-cross Examination by Mr. Mimroe. I remember seeing north of the Lockport road as I was going into Lockport bridge, no water running there, only in that chan- nel that came down from Big Run. I think it was some time 970 in the ’70s. There was some tiling had been done. I would not state ])ositively, my recollection is it was in the ’70s. I 429 remember seeing it low m the winter time when it was froze. There was no water running in the channel. It froze solid. There was plenty of water there if it had not been frozen up. But it was frozen solid so there wasn’t any water running in the main chan- nel. We chopped the fish out of the ice right in the riffles where they came there for air. I don’t recollect of anything now, 971 of any other times when there was no water running in the river. I remember a good spring on a man’s land north of our farm and two on my father’s farm had dried up after the tiles were put in. 973 James E. Flanders, a witness for complainant, testified as follows: Direct Examination. I have lived in Will County all my life except when I was away in the army and at the university of Ann Arbor. I will be 974 62 years old August 27th. I have lived close to the Desplaines all my life. I was acquainted with the river as a boy from my earliest recollection. I hunted and fished on the river as a lad, in vacations went home there about the river and in ’67 or ’68 I had my first boat and from that time probably up to about ten years ago I used the boat every year. My boating has been mainly from Joliet down stream to the mouth. The average depth from Joliet to the mouth (excluding the deepest places in Lake Joliet and Lake DuPage on the one hand and the extreme 975 shallow point on Treat’s Island on fhe other) would be from three to four feet. In Joliet Lake there are places I think 18 to 20 feet. We used three classes of boats, canoes, flat-bottomed boats and clinker-built boats. I have gone down on flat-bottomed boats with parties of six or seven people and camp equipages. On one or two occasions we had a large flat-bottomed scow-built boat. 976 It would draw loads from ten to twelve inches of water. We found that amount of water or more. A greenhorn could not have got through on account of the rocks. A man that knew the channel could go through with a boat in from a foot to 16 inches of water. It might possibly have been less in an ex- tremely dry season. There are three shallow points. There is a ledge of gravel at Brandon’s bridge and a shallow point at Treat’s 430 Island and another shallow point from a quarter to a half mile this side of the junction of the Desplaines and the Kankakee. Our party of seven went down in ’68. I have been over the 977 river since the flood of the drainage canal has been turned in, that is since January 17, 1900. There is very much more water since then, very much more indeed. I found at diffreent times it was down almost to normal. That is when the water was shut off, when the three young men were drowned and the water was shut off. They were hunting the bodies and it was said that it ran the lowest it ever ran. That was about three years ago last summer. A certain amount of water has been taken from the Desplaines River for the purpose of feeding the I. and M. Canal for many years. It is fed from the Desplaines River, 978 from up above the Ruby street bridge; there was a project- ing embankment there, projected out into the body of the river so as to divert the water from the river into the canal, and there was a foot-path and a bridge thrown across. It was one of the main feeders of the I. and M. Canal and increased the 979 water in the canal very perceptibly. For some little distance above that point the I. and M. Canal and the Desplaines River coincided in their course. That was prior to any work being done by the Sanitary District. The canal was steered into the river, and then it was steered out again, and part of the river was steered into the canal along with it. Referring to this 980 profile map, Joliet Mound was located about three-quarters of a mile north of Brandon’s bridge (in Sections 18 and 19). The canal changes its direction when it approaches Brandon’s 981 road, so that people could hardly tell their direction unless they were posted. Cross-Examination hij Mr. J\lunroe. AVhen we took the l)oat with five to seven people it was put into the Desplaines River just below the Adams dam. We left 982 the boat at Ottawa. We did not bring it back; we did not take it down for that purpose. We could have taken it l)ack if we wanted to in the I. and !M. Canal. I ’have done that hun- dreds of times. AVe owned the boat and we, had no objection exce])t we were not looking for toil. AVe could have brought it back. I have been down on tlie canal and down on the river with larger boats than that. We could not rely upon the wind, al- though we had a sail, and there were rapids that we could pole by. We had to i)ole it. Anyone as skillful as an Indian might possibly have rowed it, a boat of that size, but in those rapids 982 with two poles and two, of us in it you could do it. There were three of the rapids we would have to pole the boat to get over the rapids.. No sir, we did not get out of the boat at any time. A greenhorn would get wrecked because there were rocks, some visible, others not, but there was a channel through them. He might not if he would sit right down and let the 983 boat go down. I presume I have been on the river a hun- dred times. Through neglect or mismanagement I have been caught on the rocks. One occasion 1 remember ])articularly we did not get out and pull the boat. ANe got out and the boat tipped over. That was at Brandon’s bridge. There was never any other point where I was wrecked. I should say the rapids near the 984 mouth of the river are perhaps 25 rods u]). I never regarded it as dangerous to go through those rapids. Of course a person must understand a boat and must know the channel. A person who did not understand the boat and did not understand the channel would be liable to get ti])ped over. I don’t think it would be as hazardous down there at the junction of the Des- 985 plaines and Kankakee as at Brandon’s bridge. Since the 986 Sanitary District water was turned in we took our boat in at Brandon’s bridge and floated to the mouth of the Des- plaines. I don’t think it is hazardous in the present condition to go down the river if a person understands the boat. I never heard of any ])erson being capsized on the Des])laines Kiver since the drainage water was turned in. I never experienced any great difficulty in going down the river to the mouth of the Des- plaines. AVe generally came back by the way of the I. and 987 AI. Canal, making a x)ortage of about 20 rods in the canal. AVe never attempted to come up any great distance since the Sanitary water was turned in. The difficulty would be the swift- ness of the current. I have seen the time when I could pick my fellow, we could not go up in race-horse time, but we could make it, give me Clement in the stern with two i)addles. Q. You have shown a very considerable knowledge of the Des- plaines Eiver. Assuming that dam number one was taken out and that there was no dam in the Desplaines Eiver between Lock- port and the mouth of the Desplaines Eiver, assuming that the bridges were taken out, I will ask you would it be possible, in your judgment, for boats to go up and down the Desplaines Eiver in its present condition to-day with those changes made? A. Possibly for boats. 988 Q. Yes. A. Yes sir. Q. To go up and down! A. To go up and down. There is a fall from dam number one to South street to the south limits of about 35 to 40 feet. A boat could go up there without locks and dams by warping it up by snubbing posts along the shore, just as they do on the Mussel Shell Shoals in Tennessee, but I don’t think it is a practicable way. I think it could be done. You understand what I mean by warping. I remember the current reputation of the early use of the stream by people when they warped up the boat. Warping would not be limited to boats 989 of small size. It would depend upon the amount of power. If there was water enough and power enough you could warp up a man of war. Mr. Muxeoe. I ask you from your opinion of this river to state whether or not the Desplaines Eiver, if dam number one were removed and the bridge were taken out is suitable or adapted in its present state for carrying the commerce of this country ad- jacent to it without improvement or by means of locks? 990 (Objected to as not cross-examination.) A. Oh, I don’t think it would be without the construction. Re-direct Examination. Q. You have been asked on cross-examination to consider the river with the removal of all existing dams, otherwise not changed, and with the 300,000 cubic feet per minute of drainage water pass- ing through it; now let me ask you, assume for the moment that the improvements which are outlined in the survey of 1905 by the United States Government which provides for ten dams with appropriate locks between the north city limits of Joliet and the 4 :]:] north of tlie river were put in, with dams wliidi are broad enougii and strong enough and locks wliich were wide enough to accommo- date Mississippi Elver craft of the largest size floating on the Mississippi Elver, that is the description of the report, I will ask you to state whether the Desplaines Elver under those cir- cumstances would be capable of handling and carrying the 991 commerce that is arising out of the territory immediately ad- jacent to it? A. I think it would. 992 I have personally been present on a boat that was warped up stream in the way I have described. It was on the Tennes- see Eiver at Mussel Shell Shoals. One time during the service we took a steamer there. There were perhaps 800 of us there. There is a great deal of warping done. The men were on the 998 shore helping do the warping. The method consists of hav- ing a hawser at the bow lashed somewhere between the bow and the midships and it is taken up the shore, up stream, and made fast to a snubbing post or tree or any object that will hold. Then the nose of the boat is turned into the current and another hawser is made fast to the bow and as the boat sheers into the current it sheers otf to the right if you are going north, say, and of course makes progress up. This rope that is made fast to the bow is hauled on until the boat is parallel with the line that is hitched first until it is right-angled with the shore. Then the boat is allowed to swing back to the shore and the process 994 repeated. I have seen the boat go that way 40 rods at a time; That was on the Tennessee Elver, I could not tell how many times. I have made the trip down the St. Lawrence from Thou- sand Islands to Quebec by steamboat through the Lachine Eapids and the narrows of the St. Lawrence. And I have seen boats come back through the canal that runs right alongside of the St. Lawrence. They shoot the rapids going down and would come back by the canal. 995 George W. Eaymond, a witness for complainant, testified as follows: D i rect Examina tion. I will be 70 years old May 20, 1908. I have lived in Morris, 996 Grundy County 9 years. Have lived in Grundy County 40 years. I remember the high water in the Illinois of 1857. 434 I was a good swimmer. My brother sent me to Morris to get some milling done. On the south bank to approach the ferry I put our grain on some boards on top of the wagon box. I managed to get to the little ridge along next to the south bank and got oh to a ferry and when I got there I crossed over. I got my milling done and by that time the river had arisen so that it was im- passable. So I took down the north bank to what they called the McMillen farm where I put my horses up and stowed away my stuff and got one of the boys to row me over the river and walked over to our home. Our team remained there about two 997 weeks. Then I went over and got an old scow flat-boat and put my wagon and team on and my commodities and I started. I landed about two miles below on the opposite banh. There was a hackberry tree between our house and the bottom road that had a high-water mark. The tree is gone, but I could locate it within a reasonable distance. The water of ’57 was about six feet higher than it was last year, 1907. I am acquainted with the local repu- tation among the Indians who were still living in that vicinity at the time of the high water of 1857. The Pottawatomie chief Shabbona lived and died about a mile and a half from the 998 farm I own now. I knew him very w^ell. I conversed with him about the local reputation of the state of the water on the river. When I wanted to go back after my horses and wagon that time I went to Shabbona and told him I wanted to get across. He called a couple of squaws and they took me up the river and got into a canoe and took me across. I gave them a quarter of a dollar. I asked him in regard to the water at that time and he indicated with his cane this way, ‘‘So, there, so, up,” in the Indian way. The height that he indicated compared with 999 the level of 1857 by being about four feet higher than the level of 1857. He told me of the local reputation of the use of the stream in the early days by the settlers and explorers, motion- ing and indicating that when he was a small boy, “Me go this way, so, around Seneca.” That would be about 20 foot above the natural flow of the Illinois Kiver. He said they could go from here around there with canoes, the Indians, when he was a small boy. He was then about 80 years of age. He used to say that the river had been used l)y the early settlers and explorers and that the white men years ago used to go, “So, so, so,” point- 435 ing down stream; and that the Indians, ^^So, so, so, np,^’ pointing both np and down stream; that the white men did not go up stream, but did go down stream. 1000 Cross-Examination hij Mr. Munroe. Our farm was 13 miles from Morris from the south bank of the Illinois Kiver. It is eight miles from there up to Au Sable. The old Indian said the white men went down stream, down the Illinois into the Mississippi, but did not go up stream. 1001 The river took us two miles down when I brought the; horses back across the stream on the flat boat. It was a swift current. I took an angling course across it. I had some experience in boating on the Mississippi, the Arkansas and the White Eiver. 1002 Asked if the Illinois Eiver at his farm is capable of car- rying the commerce of the adjacent territory; objection be- ing made that it is not cross-examination and no foundation hav- ing been laid, he replied, ^ ‘ From Au Sable down to our farm 1003 as a practical mode of transportation, it is not so.’’ That refers to both past and present conditions. Shabbona gave me to understand he had been familiar with the river since he was a mere boy of five or six years. He was a Pottawatomie Indian. Personally I don’t know anything about the Desplaines Eiver and its adaptability for carrying commerce. 1004 Obadiah Hicks, a witness for complainant, testified as follows: Direct Examination. Age, 7-8. I have lived in Joliet since 1862. My business was canal boat building principally. I carried that on in the old country before I came here. Was dry dock building in New York in ’54 and ’55. Came to Lockport in ’58. Worked at canal boat building then. Came to Joliet in ’62 and had a dry dock of my own here and worked at that. Q. Were you acquainted with the local reputation as to the ex- ploration and early use of the Desplaines Eiver and the use of it by boats prior to the opening of the canal in 1848! A. No, 1005 sir, only what I have heard others say. 436 Q. I asked you if you were acquainted with its local repu- tation from what you have been informed by others? A. Yes, sir, some, because I was making inquiries about the stream in hopes that sometime it would be a ship canal and then I would have some of my business to do on it; that is the reason. It was general talk around the boat yards when I came up here, you know, about having this for a ship canal. (Ruling on said questions and answers by trial court.) (Objection by defendant on the ground that this witness was testifying in regard to the reputation as to early years which he heard after 1862. Objection overruled.) Counsel for Defendant. That matter is all subject to dis- cussion hereafter, as I understand it? The Court. Yes. Counsel for Defendant. But it seems to me that this is a question that has not come under your former ruling. The Court. Where it came as a matter of general talk, and that in what he says, this is a matter of general talk, I will let it go in subject to the general objection. (Said ruling appears on Trans, p. 1942.) That was before the canal was opened. There was some boat- ing on it, mostly trappers and hunters that came up through there. 1 observed that prior to 1860 there used to be more water in the river in the summer time than there was after that for some years. That was because the farmers were draining their lands about 1006 that time everywhere by ditching and tiling. The tiling and draining dried up the sloughs and then in the summer there was no water in the river. It was lower afterwards than it was before the putting in of the drains. I have been fishing up there prior to 1860 when the water was two feet and some places four feet deep. After that in a very dry summer there was no water running through the river at Lockport. Of course there was plenty of water in the spring and fall. Cross-Examination hij Mr. Munroe. 1 have seen it in a dry summer when there was no water run- ning under the bridge at Lockport, two or three times. There 1007 was some water coming out of the back water that was run- * ning under the east bridge, but not under the west bridge at 437 Lockport. The west bridge carried the chamie] of the river. I iiave seen it so low there that it did not go over the Jefferson street dam, sometimes, only jnst enough water to feed tlie canal. It used to take all the water to feed the canal sometimes. (Enling at the trial of said cause. Counsel for defendant moved to strike out the following testimony. Motion sustained. Said testimony so stricken out is as follows:) Did you ever hear of anybody taking any grain or merchan- dise from Joliet to Chicago by way of the Desplaines Kiver? A. No, no, not till recently. I haven’t heard of it. Q. Who did you ever hear it from recently? A. The papers, and some fellows that have been talking about the evidence they were going to give and so on. Q. Who ever told you that they knew of grain being taken from Joliet to Chicago by way of the Desplaines Eiver? A. I couldn’t say that, but I understood there was a cargo loaded in Kanka- 1008 kee and brought down to Treat’s Island, a cargo of grain and they wrecked the boat there and lost the grain. Q. But did you ever hear of a boat going from Treat’s Island to Chicago? A. No, sir, not of grain. Q. Or with anything else? A. Why, yes I have. Not to Chi- cago; but go to the headwaters of this river. I have heard of trappers’ boats going up there. Q. Going through the Desplaines Eiver to the mouth of the river? A. Not to the mouth. Up to the turn there at Eiverside. They would go up there, they couldn’t go any further. Counsel for Complainant. He refers to the portage there? The Witness. The river turns and goes up to Wisconsin then you know. They would go as far as the turn. Q. Who did you ever hear went up there? A. 1 heard a man here in Joliet say he had gone onto the boats, and talked with the trappers and examined the skins on the boats. Q. What was his name? A. William Found. Q. How do you spell his last name? A. F-o-u-n-d. He is on the streets most every day. 438 Q. How old is lief A. How old is he! Q. Yesf A. He is older than me. He is somewhere around 80 I guess. Q. And the first time you heard about that was since this trial came up? (End of testimony stricken out.) (Said rulings appear on Trans, p. 1943.) 1009 I have heard that the trappers used to be up around here. I have heard others state that a good many years ago. They were not canoes, they were bateaux. That is what they called them, a bateau. They were boats about 20 feet long and the sides of them were about three or four feet high and they had a little deck on one end, or a little cabin and they loaded their skins on there and put a canvass over them, generally, and they used to come up here to the big island, I understood, and stop there during the winter and trap and hunt there. They would go as far up the river as they could go and then have to wagon them to Chicago, put them on wagons, that is what I understood them to say. They would go up to hunt and trap all winter at the big island, so he told me, and then would go in the spring and unload them and then go back again down the river. That is not of my own knowl- 1010 edge. I was not here. In 1858 I came to Lockport. When it was dry a bateau could not go up or down the Desplaines Kiver. There was plenty of chances to go in the spring and fall. They could go down fast enough and they could pole them up, gen- erally, and rope them up, and so on. They could pole them along the middle of the river. I never saw a fence across the Desplaines Eiver, not right across the river, because it was always considered, that the middle of the river was a navigable stream and belonged to the Government, and they were not allowed to put fences across the river. Q. Who do you say contended thatf A. Why, I know of a case that transpired while I was in Lockport. There was two farmers owned some land that run down to what they called the big island there at Eomeo and there was a tree grew right on the line fence, and one farmer cut it down. Tom Williams was one and Eobinson or Anderson the other. The other sued him and the matter 1011 was carried to Washington. Charles E. Boyer carried it to Washington and got a decision and his decision was that the tree did not belong to either of them; it belonged to the Gov- ernment because it grew in a navigable stream. The old tree lay there for a good many years afterward. I got my information from ex-surveyor A. J. Mathewson, the old county surveyor. He told me more than once, and he told me where the termination of the river was. Some man’s house, he told me, I forget his name, whether it was Nickerson, or something like that, he had been over the ground and surveyed and knew all about it. He surveyed for the old canal and the Ogden ditch, and he was well acquainted with that. He told me that the Government reserved this river toward a link between the lakes and the gulf. Now, that is what I under- stood from Mathewson. Ex-Surveyor Noah Whitley also 1012 told me that he had examined the state records at Spring- field and there was nothing to show that the Government ever relinciuished its claim to the use of the river below Jefferson. It gave the canal authority to put the two basins in here, but they were to keep it open perpetually for navigation. 1013 Re-direct Examination. I don’t know who these trappers were working for; they were working for some company. They went all over down the river, I understood. Fkances Belz, a witness for complainant, testified as follows: Direct Examination. 1014 Will be 67 February 26, 1908. Born in Joliet and lived there all my life except a few years in Chicago just after the fire. My father came in 1833. I was a soldier in the’ 1015 Union Army in the Civil War. I lived about a half block from the Hesplaines Kiver all through boyhood days. I have known of the rafting of lumber and timber down the Hesplaines River. I saw that when I was ten or twelve years old. I saw a raft 150 to 200 feet long and 18 to 20 feet wide. It came down the Hesplaines River to what they called the towpath bridge; 1016 then they separated it, took part of it in the locks and the other logs they broke loose and they rolled over the Jackson 440 * street dam. They floated them into the canal and then floated them over the dam again down to the boom for catching the logs they had at Havens’ mill. I have seen Mackinaw boats on the Desplaines liiver. They were a kind of a flat bottom boat and drew about a foot or a little over a foot of water. They were 15 to 30 feet 1017 long, perhaps longer, six to seven feet wide. They were loaded with passengers and loads. Q. Describe the loads? A. I should think there was some mer- chandise of different kinds, I could not tell you what. I think there was salt came down, but I could not say if it came on the raft or on the boat. There was a man in Chicago used to own pretty much all the salt there and he had it at a very high figure, and the people were poor in them days, and in order to get his pay out of the salt he left a barrel here and a barrel there until he got down to the mouth of the river or further south to Saint Louis. Q. The boat would come down with barrels of salt? A. Yes, and distribute it at different jDoints on the way down. 3018 You saw the boat with the barrels? A. Yes, sir. Q. How old were you then? A. I was between 10 and 12 years old. I have been on the river from Jackson street and been on a little — had a little yawl boat that we used to take pleasure rides back and forth. I would go on the river with old John Bolin. He was a great trapper. In some places it was pretty deep, other places it was shallow. In the spring of the year there would be a big flood and of course the water would be higher, and in Jhe sum- mer time it would be a little shallower. I made trips both 1019 ways from the bridge here. I have been up the river to Goose Lake. In the spring it would be from three and one-half to five feet deey); in August and September three feet. On the west side of the river before you get into Goose Lake it was from three to three and one-half feet deep. I knew the old Swalm quarry, or the Davidson quarry. I have seen the old road going down 1020 to that. This road took an angle off from the Brandon’s bridge road and ran right down into the Swalm quarry. It ran right plump down to the river at the water’s edge. I never saw anybody ford the river there. It was pretty deep there; I 441 could not say liow deep. Mr. Lappin, an old fisherman here, 1021 told me they unloaded the boats down here and took tlit* teams and hauled them down the river l)elow the dams and 1022 loaded them up again. That was when 1 was a young man. Mr. Lappin is dead. Cross-Exanimation hi) Mr. Munroe. The canal was opened, I think, in 1848. It was not oj^ened all the way at first. They opened to Joliet and stopped awhile and then opened lower down. It was when I was eight or nine years old, no, seven, I was born in February, 1841. The raft I saw was in 1023 1852 or ’53. A schoolmate named Hollister saw the raft come down. We talked with the men that ran the raft. They said they came down the Desplaines Kiver. Up above Lockport, above Fitzpatrick’s they tied up the raft and I believe a part of it got wrecked and the men went over to a party and got pro- 1024 visions. I heard them tell about it. They got the raft over the Daggett dam. They might have taken it apart and took 1025 cant-hooks and rolled it over. They took them down and rolled part of it over up at the lower basin. That was their route to take them to. The I. and M. Canal and the Desplaines River coincide from a point where the canal enters the river near the towpath bridge. They got them over the Jackson 1026 street dam by taking cant-hooks and rolled them over. They took part of it through the lock at dam number 1. The biggest part went over the dam. They took them from there down to Hav- en’s mill to be sawed. They rolled them over the dam from the 1027 lower basin to the Haven mill. They never could have got them from the I. and M. Canal up to Haven’s mill. These were oak and walnut logs. The water was not high enough to float them over the top of the dam. They pulled them over the 1028 dam and brought them to Haven’s mill. I saw them in the upper basin of the canal. Where they came from T knew only by what I heard men tell me. I saw the Mackinaw boats in the upper basin and in the lower basin. They were for pleasure and commercial purposes both, I guess. I never saw them except 1029 where the river and the canal came together. I rowed from the towpath 1)ridge a mile and a half up to Woods’ Island. 442 1030 I went a little farther up than the backwater from dam one, as far as Daggett’s quarry. You can get a boat up there any time. I took a rowboat and anchor. I and another man we can draw a boat up the river. I mean there is water enough in the Des- plaines Eiver there at all seasons of the year to float a boat. I can get up there any time I want to. I got up as far as Daggett’s quarry, not farther. There was no dam there. There used 1031 to be a dam where Norton had the mill. I saw them get logs over what they called the Jackson street dam. This dam was here. It took quite awhile; I could not state how long. 1032 It was before dinner. I know they locked part of it through 1033 the locks. I saw them going through. They did not get them 1034 over dam number two the same day. The raft was 16 to 20 feet wide and 100 feet long. A raft that wide could not go through the locks. I guess that was the reason for taking it 1035 apart. The boy with me, Andrew Howliston, is dead. He died about a year ago. When they take a raft through a nar- row channel they always take them apart. I have seen them in Michigan and in the Mississippi Eiver in 1863. I was at a mill. 1036 Q What time of the year was it that you saw this raft? A. What raft are you alluding to? Q. The only raft that ever came down the Desplaines Eiver? Counsel for Complainant. ^‘I object to that statement.” (Euling on said objection by trial court.) Counsel for Complainant. object. The only raft that ever came down the Desplaines Eiver. There is no basis for such a statement. ’ ’ (Objection overruled.) (Said ruling on said objection occurs on Trans., p. 1827.) This raft on the Desplaines Eiver was in May or June, or per- haps before. The water was pretty fair them days. The 1037 water was at an ordinary stage, not low. I think Haven owned the logs, or the company. I think they got them in Wisconsin. I told you the I. and M. Canal was not completed then, only from Chicago down here. That was in ’48 that it was 1039 com])leted. ^\ y . Tanner and Mr. Blass talked about seeing 443 the raft. Blass said the boys would go in swimming and have great times among the logs. There might have been 1040 other rafts; I would not say positively. They took it from Wisconsin. The water used to raise up the Desplaines some- times and flow in up above, what they call the south branch. It would flow in what they call the south branch. My father told me that. Q. Don’t you know it is a matter of history that the Desplaines Eiver and the Chicago Eiver never met but once and then it was caused by an ice gorge in the river backing the river up! A. Ugh ! Q. Did you ever see it! A. No, but old residents of the river have seen it. Q. Well, who! A. Well, I can’t remember who they were at present now. Re-direct Examination. 1041 We took the boat and run it into the bank and took a rope and anchored it and two men pull on the rope until we got near the end of the anchor and then we hugged the bank and kept on that way until we got up. We came up hand over hand in the river. When they put in the tile it drained and let the water run out. The water ran away faster after the tile was put in. It would be higher then. Then after the water was run out it would be lower. Re-cross Examination hy Mr. Munroe. 1042 I have propelled a yawl boat by using an anchor as I have described. I did it down beyond the towpath walker’s, from Channahon to Morris. Then when we got to where the river was close to the bank we would take it and carry it over into the I. and M. Canal. I have been down to Dresden. We took the canal down to a narrow place and carried the boat over into the river. 1043 I could go to the place and show you. We went down to the towpath walker’s house. We went down a ways and carried the boat over into the river. And we went down to the towpath walker’s and they stopped there and I and somebody else went on as far as Dresden. We came back part on the river and part on the canal. We used the lower part of the river. 444 Q. Why didn’t you come ail the way up on the river! A. Be- cause we had a horse that would tow us. 1 045 Extract from . J oliet Signal read in evidence : 'Woliet Signal, Tuesday, March 28, 1848. Tolls on the Canal. ^ The rafting of timber on the canal or feeders is prohibited unless by special or written agreement of the superintendent of the canal. Any violation of this order will subject the person violating it to a penalty of $10 for every such offense. * * * First Arrival. A canal boat arrived at this place yesterday froni Channahon. This is the first boat that has been launched on this section in the canal. It was loaded with lumber by the Messrs. Havens of this place for the northern portion of the wmrk. The canal here is in navi^ gable order.” 1046 Henry H. Pohl, a witness for complainant, testified as follows: Direct Examination . Am fifty-seven years old; live in Joliet. I have lived in IVill County since 1859. Have boated on the Desplaines; used to from 1869 to 1876, usually in July and August. We started in one boat just below the old planing mill at Adams dam. Other times we would start in just below Brandon’s bridge at the head 1047 of Lake Joliet and go south. lAe generally stopped at Treat’s Island on account of trouble in getting through. There is a shallow place there. I have been through there. I remember twice going down through below there with A. C. Clement. I had a joint interest with him in a flat bottomed boat. IVe had to get out 1048 at times and lift her over. The water was rather low that summer but we managed to get through all right with the boat. There w^ere quite a number of boulders scattered around in the bed of the river. The boulders would be two feet or more in diameter and from that smaller; the largest ones would show the t()})s above the water. AVe had no difficulty anywhere else in get- ting through. There was some difficulty there because the boulders were pretty thick and it was difficult to run a boat through in the swift running water. The depth of water in Lake Joliet near Flat- head Mound was from twelve to twenty feet, I should say, 1049 varying of course at different points. In 1869 I made the trip from here down to Marseilles. M^e had to pole through and lift over at the one point at the head of Treat’s Island. Cross-Examination hy Mr. Munroe. I am secretary of the People’s Loan & Homestead Association. The boat that Clement and I went down with was a row boat, f was often on the Hesplaines river. I never rowed a boat u])- 1050 stream from Brandon’s bridge to the Adams dam. The cur- rent was too swift to row ni)streani against. One might be able to sail one up with a good stiff wind; he might pole it up possi- bly. I don’t think he could row it up. The distance there is about half a mile. I can’t recall seeing a boat come up through that half mile. I am acquainted with the river north of Joliet for a cer- tain distance, up above Wood’s Island; at the foot of Wood’s 1051 Island is about where the slack water commences. We didn’t go up beyond that on account of the current and ri])ples. We couldn’t very well row above that point. The current was 1052 pretty swift. That was for a stretcli of perhaps three city blocks. I have been further north up to the old Norton mills, a mile and a half or two miles above Wood’s Island. There were more or less obstructions, stones and riffles, but we could sail 1052 up there using an ordinary leg of mutton sail. The river is very wide there. There was water enough to carry the ])oat without any difficulty. I never went north of Daggett mill at Lock- port. Between Daggett’s mill at Lockport and Wood’s Island, Joliet, in ordinary stages of water, one boated up through there but it was with some trouble, of course. In the low stage of water it would be impossible, unless you dragged it. I never had oc- 1054 casion to go north of Daggett mill. Lake Joliet is about four miles long. It is practically a dead level; there wasn’t mucli current there. The stretch at Treat’s Island has a very rapid 1055 current, judging from the map (p. 25), plat book of Will County, a little over half a mile long. I thought it was about 1056 1,000 feet. The current was swift the entire length of the island at the time I was there. We v^ent down the right hand side, west channel. We rowed down, occasionally would get stranded on a rock, get out and lift her off, shove her down, 1057 but we were out only at times. There were some rapids just below the mouth of the DuPage Eiver. I think we had a little trouble there. I don’t recollect any trouble at the mouth 446 of the Desplaines or for the 400 feet above the mouth. I re- 1058 member the Kankakee was quite high. We went down as far as Marseilles. We had no trouble in the Illinois Eiver, did not have to get out and pull over any obstructions. The Des- piaines Eiver at that time seemed just 'normal stage I thought. It was either the latter part of July or the fore part of August. I did not go down to Marseilles but once. I was down a second 1059 time past the island. We had to get out the same as the first time at Treat’s Island and at the DuPage riffles. When we went down to Marseilles we came back on the canal be- cause it was a good deal easier to come up the canal. We could hitch on a canal boat and be towed up. It would have been hard work of course to have come up the river. There would be 1060 places where we couldn’t row; some of them more than half a mile long. I have been down to Treat’s Island perhaps a hundred times. I have not been up above Wood’s Island a great many times. I have had no experience traveling on other rivers. I have been on a steamboat on the Mississippi, but not on any 1061 of its tributaries. The witness is asked, based on his knowledge of the river and assuming that Dam No. 1 were taken out and the bridges over the Desplaines were removed, is the river An your opinion capable of being used in its present state for any commercial purpose, or in the state it was when you knew it best? (Objection, as not cross-examination, also the question as- sumes non-existent conditions and calls for opinions and con- clusions which are irrelevant, incompetent and immaterial.) A. It would not have much commercial value I don’t think, left in that condition, with the dams out and no improvements made with reference to checking the water. Q. Would the river have any commercial value, carrying com- merce, or be capable of carrying commerce up and down? (Same objection.) 1062 A. Well, it would have a very limited use under those con- ditions. It would be possible of course to go up; whether it would be profitable or not would be another question, by small boats, skiffs, row boats, batteaus or something of that kind. You 447 would slide them over, push them over the obstacles and push them along. I have seen the Desplaines since the Sanitary District water was turned in. I have crossed the river often. Under the present conditions of water it would be dangerous for an ordinary person not skilled in a boat to go down through the river, but a 1063 skilled person could go down there. A man could not take a row boat from Lake Joliet to the foot of Dam No. 1 to-day in the present conditions. I would not say he could not get it up there in any way. With a motor boat you could go up there possibly. With a stiff wind I am not sure that a person could not sail a boat up there even now. That distance is about a mile and a half. Re-direct Examination. Any boat equipped with a gasoline motor is what I had in mind. I have not seen it tried. I was just wondering whether it could not be done. I don’t own a motor boat. I have seen them, 1064 eighteen or twenty feet long and four to six feet beam, draw- ing probably two feet, the shorter ones. They had machin- ery, propelled by gasoline in the bed of the boat. I have seen them on the canal in use. This kind of craft is comparatively a new invention, just beginning to be introduced. I believe the river at this time is in receipt, above Joliet, of substantially 300,- 000 cubic feet a minute from the Sanitary District channel. The canal has been coincident with the river for a portion of the 1065 distance above Joliet, and there is a feeder provision with a lock by which a considerable portion of the Desplaines Eiver is made to feed into the canal. Open ditch draining had been going on in the country for a long time before the tile drain- ing came in. Our tiling factory here was running in 1869, for manufacturing under-draining tile and had been for some years before 1869. Re-cross Examination by Mr. Munroe. 1066 I don’t know whether the taking out of Dam No. 1 would make any ditference after the first rush of water was over. I don’t know that that would increase the hazard any. 448 Re-re-direct Examination. Dam Xo. 1 has been here ever since I can remember. There used to be some other dams, but they have all been removed. Dam No. 1 is the only dam there is in the river from Joliet to its mouth. 1067 It is stipulated that page 15 and page 25 of the plat book may be put in evidence in connection with the witness’ testi- mony if desired. (Plat book of Will County, Illinois, compiled and published by George A. Ogle & Go., Chicago, 1893, assisted in record work and drafting by W. E. Hocking, Joliet, 111., being a book produced by counsel for defendant. Atlas pp. 3917-3918; Trans., pp. 6488-6490; Abst., p. 1916.) George Albert Parrext, a witness for complainant, testified as follows: Direct Examination. 1068 I am sixty- five years old. Live in Joliet and have lived in Will County ever since 1853. Have been acquainted with the Desplaines River continuously since that time. Have gone upon it in boats. My last boat was 19 feet 10 inches long, 17 feet on the water line, 5 feet beam. It had a three-inch keel on the outside and it had a sail. I have carried 1,500 pounds of luggage two men at 200 pounds apiece, they would weigh that or more, and a couple of hundred pounds of decoy ducks. I would 1069 go down twice a year, in the spring and again in the fall. From the early use in the spring to the latest use in the fall it would be about five or six months between. At the head 1070 of Treat’s Island was the shallowest places. I have been through there two hundred times. We used to go pretty often. I have gone down there when the water at the head of Treat’s Island was four feet deep on the riffles. At the shallow- est place we could go up there with a boat drawing 18 inches 1071 of water. I once loaned two boats to a man on the island to haul his hay off the island. I had two boats there 14 feet long; they were 27 inches wide on the bottom and 44 on the top. He put the two boats together and took a big load of hay off the island there. I know the location of Davidson’s quarry. It 449 is about a mile back from the river. There was a road con- nected it with the river. I used to see it before there was any bridge there. I have noticed the road in particular coming 1072 down where it touched the river. The road came down at right angles to the river and then a road branched otf and went down to the round place at the head of the lake. Eight there there was a deep hole. There was a well traveled road went right down to the place; it was filled up as a regular road. I noticed the road there in the fore part of the fifties, when a man was drawing a seine there. There was a big cove in there and the water was deep and at the point where the curved road came down to the water’s edge it was five or six feet deep. There was no ford way or roadway across the river at that point; they couldn’t get across there. It was too swampy on the other side; they couldn’t have landed. If they had driven in there they 1073 couldn’t have got out and the water would have been too deep. The road from which this branched off did go out across the river at a shallow point and the branch came down 1074 to the river at the deep point. That road coming down to the river at the deep point must have been for loading ma- terial onto boats in the river, because there were stakes driven along the side. They said they had to be careful about the stakes when pulling in the seines. I noticed them, and it looked as though they were driving right along there for a dock there, a kind of landing place. I noticed it on account of the pulling in of the seine there. I remember the making of the deep cut by which the Chicago Eiver was connected with and turned into the I. & M. Canal, back between 1867 and 1871. That has filled up the 1075 bed of Lake Joliet with mud and made it shallower than it was before. It naturally would, because there is no current in the lake. Cross-Examination hy Mr. Munroe. I have probably owned forty or fifty boats on the Desplaines. They have been row boats, except this one that was a sail boat. The sail boat had a 16-foot keel, 19 feet 10 inches long, 17 feet on the water line, 5 foot bottom, 14-foot mast, 11-foot boom, 6-foot gatf. I used that boat on the river from the oatmeal mill down to the mouth and back again. George Abbott used to go with me 450 Par rent, — Cross-Exam. — Continued. in that boat and Sam Cutler. Cutler is dead. Abbott lives 1076 here. This trip went from Hickory Creek down. It drew 17 inches loaded. We went to the mouth of the Desplaines River, up the Kankakee to the first island. That was about the first of March. The creek was up ; the river was not up so high. The river was about the same as it would be any time in the spring. We came back up over the riffles. We didnT have any difflculty in pulling it over the riffles. One man would get out 1077 of the boat and the others would stay in and keep it away from the shore, standing up with the pole. The other was on the shore pulling on the painter and that occurred right at the rapids of Treat ^s Island. We had to pull the boat that way probably 30 or 40 rods. We did not experience any other rapids that bothered us in our course. We came right along up the river. We brought it up beyond Davidson’s quarry there and then we pulled it out and put it into the canal because we couldn’t get any further on account of the Jefferson street dam. We came opposite the oatmeal mill, just below Porter’s brewery. We 1078 didn’t pull it up stream from Brandon’s bridge to the oat- meal mill or the dam, because we put the sail up and the wind was good and sailed along. You could sail it up now. We couldn’t row it up very well. I have rowed skiffs up, but that boat was too large. Mr. Abbott went with me that trip. His three sons have gone with me on such trips. It was 1875 or 1876 that we made that trip with Mr. Abbott. I was over forty; I am sixty-five now. I saw this road down to the river about 1079 1854 or ’5. I was fifteen or sixteen. I was seeing the man seine; I was not drawing the seine myself. It was all open prairie then, no fences. I couldn’t say whose land it was. The road was right there at the head of the lake. (Witness is shown the township map, showing Lake Joliet, Pat- terson’s Island and Brandon’s Road.) 1080 It was right on this bend (indicating). I was at least nine years old. It was a well beaten road. There was stuff thrown in to make it. I should not think it was used just to drive horses down to water. I knew all about it at the time; I knew there was a road there and I have always known it since and I know it now. I don’t think the road is there now. I haven’t been down there for seven or ten years. I could find 1081 it if it is there, if the snow is off. The ford that crossed there was right above the bridge, where the bridge is now. They crossed on either side, because tliere was a stone l)ottom there. I don’t think it would have been as far south of Brandon’s bridge, as ten rods. It would be too wide there. I have seen the ford there before the bridge was built and gone across it. There was no bridge when I was first around there. I have gone down the Desplaines when I did not have to get out and pole 1082 the boat along. I have gone down in June and did not have to take the boat out to get over the riffles. There was a young fellow with me. I have come up the Desplaines Eiver at other times without having to get out and pull the boat up from Treat’s Island up to the oatmeal mill. I cannot say from the mouth of the river. Yes, we rowed the boat right over the riffles. I couldn’t say whether we could do it to-day under the present condition of the water, because I haven’t been down there to see. Yes, it could be done to-day, and a motor boat could come 1083 up there to-day. I have ridden in motor boats. They would go ten miles an hour in open water and five or six miles in the canal. I have gone from here to Channahon in it. I don’t own a motor boat myself. Albert Keeling owned that. It went about five or six miles an hour when I rode in it. It was a ten. horse power boat, 36 feet long, covered in, with a full cabin. I don’t think that boat could come up the Desplaines, because it didn’t have power enough. 1084 I have made an affidavit in this case. I don’t think I said anything about hay being conveyed on the Desplaines River on boats in the affidavit, but I have seen men carry produce up and down there, I mean meal and flour, to cook. I don’t know that I ever saw anybody carrying things on the Desplaines 1085 River to sell. I always took supplies when I went down the river hunting. I did not try to buy any. There is a place down there at Chananhon about two miles from the river where one could buy. There used to be a place at Dresden and another at Au Sable. You can’t now. I have carried corn and wheat. 1086 I have carried a load of 1,500 pounds at a time, ammunition, tents, stove, bedding, decoy ducks, traps, rubber boots, beds, • 452 food ; there were three of us. I did not take the hay off of Treat’s Island. I let a man take my boats to get the hay off. Do you want to know where I took hay off? I took it from the DuPage River. We would put the boat from the Desplaines into the Du- page by locking it into the canal at Channahon. We went 1087 down the DuPage River to fish. We went down by the canal. I have taken the big boat down to the DuPage River a good many times. I have been up the DuPage to Plainfield, two or three miles above Channahon with a small boat pushing; never had occasion to go further. I never took the big boat 1088 up Hickory Creek. We took it to the creek by taking the big rubble car from the house and running it down. I kept the boat on the dry land between the canal and the river, 1089 pulled it out every time with a block and tackle. I was down there looking for ducks when I saw them drawing the seine. They did not tell me to be careful and not knock the posts down. I think a man named Lampin said not to get into the posts with the seine. They were talking to themselves; I stood there and talked with them. Thereupon counsel for complainant oifered in evidence as Ex- hibit 4, an affidavit of Geo. Albert Parrent as follows: 1090 State of Illinois, County of Will. Geokge Albekt Pakkent, of said county, being first duly sworn on his oath, deposes and says : That he is now of the age of 65 years and that he has resided in Joliet continuously since the year 1853, and that from his first coming to Joliet and for many years thereafter he was much in- terested in hunting and fishing and indulged in the sport at almost all seasons of the year. That he went up and down the Desplaines River often in boats at times as far up as the Goose Lake above Romeo, and down to its mouth, that the same was navigable for ordinary boats the whole distance except when the same was ob- structed by dams across it. That said boating could be carried on for at least six months in the year, and in some years all the year except when obstructed by the dams and hy ice. That the said river was navigable for boats drawing from two to four 453 feet of water from the head of the lake below Joliet to the mouth of the river at all seasons of the year except at the rapids at Treat ^s Island and they were about one hundred rods in length. That boats of like capacity could go up and down these rapids for^ at least six months in the year. That the river above the dams at Joliet was navigable at nearly all seasons for boats drawing at least two feet of water, the only obstruction being a small dam at West Lockport. That in high water the flats both 1091 above and below Joliet were so overflowed that like boats could go up, or sail there outside the current without the least difficulty except for the dams across the same. That after he came here in 1853 he remembers seeing a road from what is now known as Davidson’s Quarry in Joliet to the head of Lake Joliet, and that the said road was then a w^ell traveled road and looked as though the same had been used for hauling heavy loads over it. That there was not then any bridge across or over said river nor was there any road leading from said river on the op- posite or east side of the same. That this affiant was informed at the time that said road was used for hauling stone from said quarry to the river and loaded upon boats and taken down the river. That there was a deep hole at the ))lace where said stone and other stuff were loaded and it was then plain to be seen where the loading took place. (Signed) Geoeoe Albekt Parrent. Subscribed and sworn to before me this 8th day of January, 1908. (Signed) W. W. Stevens, (notarial seal) Notary Public. 1092 A man stood down there and told me that stone from the quarry was loaded on boats there and taken down the river. 1093 That was told me the same as it was about the abutments down there. I think it was later than 1853, somewheres along in 1854 or ’55. He told me that was what the road was used for. The man stood on the aqueduct and told me things, too, about those men being drowned. The man stood right oii the aqueduct and told me that that was there at the time. This road was built up with stones and stuff thrown in there. A man 454 couldn’t help but see it. These fishermen were there with us. 1094 I don’t think there was a bridge there then. I said in my affidavit the river was navigable for boats drawing from 2 to 4 feet of water from the head of Lake Joliet to the mouth of the river at all seasons of the year, except at the rapids at Treat’s Island. There was never less than two feet of water at the mouth of the DuPage River. I never saw less than two 1095 feet at the mouth of the Desplaines. I say a boat could go up there six months in the year, drawing two feet of water. That I know. It drew a good deal more than that sometimes. We could get it up without going on the bank; of course it 1096 would have to be pulled. You would have to use the capstan ; you would not have to put a post on the bank. You could put an anchor at the head of the riffles and throw a line out and pull it up, do it with a block and tackle. That would be three or four months in the spring and the balance in the fall, touching the lowest points. 1097 George Abbott^ a witness for complainant, testified as follows : Direct Examination. I live in Will County just outside the city. I am in my eightieth year. Was born at Keene, New Hampshire in 1828; came to Will County in 1853. My home has been here since 1857. I 1098 have been acquainted with the Desplaines River ever since. I went hunting and fishing on the river in the fall of 1857 ; have been down there ever since up to within two }^ears. I then lived right at the site of the Rock Island depot in Joliet; kept a restaurant there eighteen years. I would put my boat into the river right where Malcolm’s dam used to be. There is no dam there now. Most of the time I kept the boat at Patterson’s Island, below Brandon’s bridge. I have gone sometimes twenty trips in a year, sometimes more than that. Two years ago I went down clean through to the mouth. That was in the summer of 1905. In 1857 I don’t think I w^ent below what was called 1099 Charley Smith’s bridge. I went on down to the mouth in 1858 and practically every year after that, and sometimes several times a year. The water was pretty shallow just at the head of Treat’s Island. They had built liftle dams across each 455 of the three channels and turned the water into the third, into tlie race of an old mill. It was pretty shallow in the summer season. You could run a skiff over it a good many times after the fall rains. The water was a couple of feet deep near the Malcolm Dam. In Lake Joliet it varied awfully, all the way from three or four feet to the deepest place off Darcy’s Bluff; that was 1100 42 feet deep in high water. That was before the opening of the deep cut, when the bad water came in. Since the drain- age water came down it overflows lots more country than it did years ago. I remember that just l)efore the Chicago fire there was a cutting made that opened the Chicago Eiver into the canal. They turned in a lot of sediment and dirt and killed off every living thing in the lake. I have been down there when it looked as though you could walk right off on the water for an acre with nothing but dead fish, because it caused the sediment and mud to accumulate in the lake. There used to be a ford 1101 just above Smith’s bridge. I have crossed it with a buggy. If you knew the track the water would just about come up to the bottom of the buggy, sometimes come in. You had to keep at the shallowest point to keep the water from coming into the buggy. In low water, in the summer season, I have been across there when it did not come in. I know where Joe’s Island is. There was a ford there Avhere you could cross when the water was low. I knew Shabbona, the Pottawattomie Indian Chief. He told me the current report as to the French and Indian trading in furs up and down the river. I used to walk down with him Sun- day mornings and he would stay at my house and we would walk down together as far as Patterson’s Island. He told me about going up the river in canoes. I asked him what the canoes were doing up the river here. He said they bring furs, they 1102 brought furs and took them up to the big waters from here, at Fort Dearborn somewheres. I asked him how they could pull over these riffles and he indicated with a cane ‘^poled up.” That is all I remember. That was about the outbreak of the Civil War when Shabbona told me. 456 1103 C ross-Examination hy Mr. Munroe. The water was sometimes high enough at Treat’s Island to float a skiff over it; that would be in the spring and the fall when we had big rains. That would be on the side next to Glidden’s, on the left hand side going down. Mr. Millls lives there now. I have taken skiffs up and down a great manj^ times; I always got out and lifted it over the riffles. The riffles were very shallow most all the way from the head of the island to the foot. There were spots we did not have to take tlie boat up and down over them that dis- tance. There were spots where the boat would run along and then in spots there would be a deep place right along and^mu would get in until you would come to a riffle and get out again. The boats I used on the river were the ordinary skiffs. There was a pretty strong current below the oatmeal mill and a good many boulders. In that strong current and boulders it would be hazardous in 1105 low water unless it was daylight. There were boulders that would come up close to the top of the water, but a man that was used to the stream could tell where they were. It was not haz- ardous to go down there in high water if you kept the channel. It is not so swift but what a man that understood handling a canoe could pole up against it. No, a man would not be capsized even if he was not skillful in handling a boat, but he would turn 1106 around and go back toward the lake again. He is apt to go down in safety in high water. There were trees growing on this island and in high water the river spreads out and goes right through these trees, but a man going down with a boat would probably take the stream. There were three channels there. The current does not travel out through the trees. In high water any one of these channels would take a boat through. No, I do not think a man would be apt to go in among the trees and tip over, even if he didn’t exercise great care. He ymuld not do that if he could keep out in the current. There is a sand bar at the point 1107 where the HuPage Elver comes in. It comes kind of kittering down the river. Mostly you could float the skiff over the bar on the east or south side next to the HuPage. I have often stuck there. There have been times when you would have to get out and pole your boat along on the east side if you have a load. There were some rapids about 600 or 700 feet from the mouth. It 457 was swift there, but it was swifter right below the mouth wliere they used to have the old dam. The water is deep enough below that for the boats. There are a good many big boulders in 1108 there. The water makes waves now, but in those days there wasnT so much water running down. It wasn’t bad getting through. We used to bring our boat back up the river. We would get out and pole it and pull it. It was not difficult or tedious. I did not used to think so. Two years ago last summer, the T109 summer of 1905, I was down there. The drainage water was in the river then. We put our boat in right below the Eock Island railroad bridge. I do not think that there was any particular hazard to a man not skilled in handling a boat going down there. I did not think there was any particular danger until you struck close to the mouth of the river, where it is pretty swift, because it would suck and roll the boat. I remember we took five or six, three of them women, right down there. 1110 There were three men and three women and a little child in the boat. We pulled it over. We came back up the canal. It was too much work to come back up from the mouth. I have seen men come up pretty strong currents. I couldn’t do it. (Age 78.) I have been on the Missouri for two years. Q. I want to ask you from your knowledge of the Desplaines Eiver, as it is to-day, and as it was when you were down 1111 there, the many times that you were, whether or not the river in its natural state and without improvements by locks and dams is capable of carrying commerce? Counsel for Complainant. I object to any such questions as not cross-examination, the witness, not having been offered as an expert on that subject, not qualified in that way, to enable him to express an expert opinion on a hypothetical case, of the kind that is put. (Ruling on said objection by trial court. The Court. Objection sustained. You may adopt him as your own witness for this question. Counsel for Defendant. For the purposes of that ques- tion, we adopt him as our own witness. Counsel for Complainant. If he is offered as a witness on the part of the defendant, we will raise the objection now 458 that he is not qualified, and it is incompetent, irrelevant and immaterial. Said ruling occurs on Trans., pp. 1945-1946.) Q. The current is such that no commerce could go up the river, in your opinion, is that so? (Objection.) A. I should not think so. Q. When you were down there the depths of water were such it could not float any commerce? A. Well, take it between Treat’s Island and Patterson’s Island, it ran all the way from three or four feet, but it is as deep as forty-two feet. Edward D. Beockway, a witness for complainant, testified as follows: Direct Examination. 1113 I live in Plainfield; will be fifty-nine years old August 9tli. Was born and raised in Will County, about a mile from the river. I have been familiar with the river. I moved to Plain- 1114 field about twenty-two years ago. I used to hunt and fish and trap on the river andi go on it a good deal from the time I was eight years old. I would be there every day in the fall until freezing weather. We generally either had a boat at Kock Eun or kept one above, just below the old Joliet mound. Sometimes went as far down as Treat’s Island and up as far as Pat- 1115 terson’s and Brandon’s bridge. I have forded the river with a team just at the head of Treat’s Island quite often. We would go over there when gooseberries were ripe to get gooseber- ries. I have forded it when the water would come into the 1116 wagon box. Sometimes it would be quite a bit lower and come up to the hubs. Sometimes I went there and couldn’t get across, wouldn’t risk it; it was too deep and I would walk back. Probably three times a year I would do that, as long as there were berries. That was from 1861 up until they cut otf the bushes. ]\Fy father came here twenty-five years before I was born. My father told me about taking a flat boat down the river from 1117 Peoria to Joliet. He said he got ten dollars for it and bought a cow with the ten dollars. He told me this about two years before he died. He did not fix the date of the trip. He just spoke 451 ) of it as a flat boat lie took down the river. I suppose it would be 20 or 30 feet long, something like that. I know Davidson’s 1118 quarry. There was a road there for awhile that went down to the river. I have been there and seen where it came to the 1119 water’s edge. It was quite deep there, made on purpose for loading stuff onto the boats from the road. There w^ere ruts in the road. There was no road on the other side of the river opposite where this landing place was. There was a ford back u]) that main road where Brandon’s bridge is. I have forded it there in July and August. It would come up pretty near to the box in the lowest season of water. Cross-Exaniination hy Mr. Munroe. 1120 The last I saw of that road was over forty years ago. 1 first saw it three or four yours before that. I was up there with a boat at that time, a kind of a flat boat, one that we made our- selves. It was not the kind that my father took to Peoria. It wms a good deal lighter than that. I know a scow and a row boat 1121 differ. A scow or flat boat is a great deal heavier, built of heavy plank; on a scow the deck is built right level, like that table. When I saw the road I think one of my brothers was wdth me. He is dead. They had a road there to load the stuff onto freight it down to the quarry. That is what the road is for. They would freight it out to the quarry or Lake Joliet. Q. And the road leads down to the water’s edge at Lake Joliet and Miller’s in from Lake Joliet, two or three miles down, north of it, in that wide portion of the river, and they used a scow 1122 boat to convey quarry stone from Miller’s! A. No, they freighted material down to that quarry on the end of Mount Flathead, right where the Eock Eun empties into the river. (Euling in reference to said question by trial court. Counsel foe CompluIinant. I think that we agree that the location of Mount Flathead is at the south end of the strip called Lake Joliet, the southwest end, and Mount Joliet is at the east end of Lake Joliet., Mr. Scott indicated it yes- terday. The CouET. Northeast or northwest! Mr. Muneoe. Northwest. Counsel foe Defendant. Joliet w^ould be northeast, all of Lake Joliet would be northeast. 460 Mr. Mu 2 ^"roe. That is I thought; it is on the right- hand side going down. Counsel for Complainant. I beg pardon — yes, it is on the right-hand side. The Court. Xorthwest, you mean? Counsel for Complainant. Yes, the northeast end of this long strip is Mount Joliet, and at the southwest end of it is Mount Flathead. The Court. Then it is on the right-hand side? Counsel for Complainant. Yes, it is on the west side of the river. Said ruling appears on Trans, p. 2193.) It is i3rohably six miles. A man by the name of Swalm run the ([uarry. Lake Joliet is 54 or 6 miles long from Patterson’s Island down to Treat’s Island. It is a wide part of the Desplaines Eiver. It is not shallow. Oh, yes, there is some current. I have 1123 crossed the river at different points. I never saw a boat car- rying merchandise or freight on the river, only this freight- ing of stuff down from the quarry. I heard from my folks about his sending the stuff down. I only heard of it the one year. Q. Only one year, and to get his supplies in and open up his quarry, is that right? A. Yes, that is it. Q. And after he got his supplies in that was the end of taking any materials down? A. Yes. He freighted derricks and such things down to save hauling them. That is all I knew. Eiley Tanner, 1124 defendant’s witness, examined by Mr. Munroe, testified as follows : Direct Examination. I am sixty-five years old and have lived in Joliet since July, 1125 1842. I remember seeing logs. I only saw them in the upper basin of the I. & M. Canal. I did not know where they came from. They came down the river and were thrown over the dam here and went to Haven’s mill. Counsel for Defendant. Did they come down the canal or down the river? A. I should judge they came down the canal. I am not sure, 1 won’t be sure. I saw them tuinhle over the dam here, down liy the boom, and run dov/n to the mill. 561 1127 Cross-Examination. They were hard wood, oak and walnut. I have seen them many and many times when they took cant hooks and threw them over this dam and floated them down to this boom at Haven’s 1128 mill. Oak, walnut and hickory were the characteristic trees of the whole river valley all the way that I know. In the early days Havens was running a mill there and had a dam to catch the logs as they came down. I never heard wdiere they came from. I couldn’t say. I noticed them come down in the basin and tip over the dam and go down to the boom. William Found, 1129 defendant’s witness, testified as follows: Examination hy Mr. Munroe. I will be eighty- two years old pretty quick. Have lived in Joliet fifty-six years this spring. That is, I came in 1852. In the spring of 1853 and the fall of 1852 I hunted on the big- island this side of Lemont a gKDod deal, and along in the spring of the year when the water was breaking up I went out again, and in the big island you understand there was a number of fishing men had their camps, and trappers there ; they were camping down on the islands. We talked to them. They had a boat there. It was I should think six or eight feet wide and about twenty feet long and they had a cabin in it and a bunk to lie down on. That is the only boat I ever saw on that, except a little row boat. 1130 They had a good deal of work getting their boat up and down the river. They got on the riffles and had to get out in the river. They wore heavy rubber boots and pushed it in the deep water. We used to fish up and down from Lockport to Willow Springs. Eliza P. Jones, 1132 a witness for complainant, testified as follows : Direct Examination. My home is in Homer, Will County. I have lived in the county all my life. My birthplace was the house I live in. My father’s name was William J. Paddock. Our home is about two and a half 462 miles from the river, possibly four. Father came in 1836. I 1133 once went fishing- on the river myself. It w^as up near where Eomeo is now; it was just before the war, 1859 or ’60. The young men got a boat and went on the river. They did not wade. The water was too deep. It was between three and four feet 1134 deep. I have heard my father and others tell the current reputation of the history of the early days on the Desplaines Fiver. I have heard my father say many times that supplies were- carried up from the south as far as Lockport or up to here. When father came there was no canal and there was no railroad. I re- member particularly of his speaking often that there was some man cornered coarse salt in Chicago, and that all the way they were able to get it was down the river, and it cost them $10 a barrel. I have heard him say that many times. That is the way I 1135 understood it. There was no other way to get it unless they went by wagons. That was long before the time when I went fishing. There was a Mr. Frederick Collins used to live there and the two old gentlemen used to sit and talk over old times and I have lieard them talk these things over and over and over again. F36 Cross-Examination by Mr. Miinroe. Father came from New York State, walking and driving a one horse wagon to Chicago and across country to Homer. He did not go down the river. He did not tell me that he brought salt down the Desplaines Fiver. He said it came down the river. 1137 I don’t know that it was a fact that the supplies were hauled to Joliet from Chicago by wagons or that grain was hauled from Joliet to Chicago by wagon. I know some grain was hauled that way. That was after the canal was opened though, after they commenced the canal. 1 have heard my father say that when the state became bankrupt that they had to haul their grain to Chicago. That was after they gave up using the river, I suppose. Father told me that li:>8 when the state became bankrupt the canal was not finished, so they hauled grain by wagon, not much of it, only once in awhile a load. Q. That was the only way they could get it there, wasn’t it ’ A. 1 think not. 463 Q. Wliat otlier way? A. I think tiiey shipped it. Q. By boat? A. By boat. Q. Where did you get that information from? A. I inferred it from what my father said. All the grain in our vicinity wms never liauled to Chicago. I am sixty-three years old. Q. You say that supplies from the south came up as far as Lockport? A. Well, as far as here. I wouldn’t be positive whether they came as far as Lockport. 1139 I only know about supplies coming up from the south by river from what I heard my father say. He said it came up on a boat. I don’t know what kind of a boat, but supplies came up, and some came by wagons which they called prairie schooners. He said some came by boat. He spoke of fruit being brought 1140 up from further south because there was no fruit here. 1 understood him to mean Joliet. He didn’t mean Ottawa. That is too far off. Samuel W. Jones, 1141 a wdtness for complainant, testified as follows: Direct Examination. 1 live at Homer, Will County. Have lived tliere since 1866. The Mrs. Jones who has just testified is my wife. 1 was a soldier in the Union Army; I went into the service from Massachu- 1142 setts. We made our home with Mr. Paddock, her father. He died some twelve years ago. I have heard from Mr. Pad- dock and from old settlers the current repuation as to the his- 1143 tory of the early use of the river. I have heard Mr. Paddock and our neighbor, Mr. Collins, in talking over their early times, state that supplies were brought up the river by boat in an early day, that is, prior to the opening of the canal. I have heard them speak of having salt brought down from Chicago. They spoke of some fellow who got a corner on the salt and they had to pay an enormous price, $10 a barrel for the salt ; it came down the river, brought down by boat. I heard that from them before 1144 I went to live with Mr. Paddock. He talked about those things after my living with him. He settled in 1836, and it 464 was immediately after that, I understand, and he began to tell those things about the river after I became acquainted with him, and after that time made occasional allusions to it up to the time of his death. Cross-Examination hy Mr. Munroe. The other man, Mr. Frederick Collins, is dead. He came here in 1832 or 1833. I heard these old gentlemen talking these 1145 things over together. They never talked about dams in the river at that time. I occasionally visited the upper part of the river, at Lockport and above. If I went to Chicago after I came here in 1866 it was by train. You must remember the 1146 railroads were here then. I would go to the river only for fishing or something of that kind. I don’t think father went so very frequently, but he occasionally went. I don’t think I heard them speak of themselves bringing things on the river. I don’t think they confused the bringing of supplies by the canal, because they were talking about those early days prior to the opening of the canal. I don’t think they were confused in that at all. I have heard father say he hauled grain in a wagon. I never 1147 heard him say why. They had their teams and they could haul it cheap that way. I heard them tell about hauling grain by wagon to Chicago. They never told me that all the produce was hauled that way. Hanieu W. King, 1149 a witness for complainant, testified as follows; Direct Examination. I am fifty-two years old and live at Plainfield, Will County; was born and raised there. Plave always lived in Will County. 1150 I have lived within seven or eight miles of the Desplaines Iviver. My home is below here. I have been on the river with men who came down from here in a boat. They would 1151 bring the boat down and we made hunting and fishing trips, making Treat’s Island headquarters and camping grounds. My first trip when I camped at Treat’s Island was 1872, in the fall of the year. AVe usually would have two men go in the boat down the river and two would hunt on the shore. They would 4G5 bring in the boat a tent, a camp stove, stuff to last three or 1152 four days. Some of them were great fishers. 1 used the gun. I remember the shallow point at the head of Treat’s Island. 1 never measured it, but we used what they called hip boots, tall rubber boots that come up to the hips. It would come within 1 153 an inch and a half or two inches of going over the tops of them to ford there. Of course we could ford it over all the time that I was there by facing up against the stream. If you turned sideways the current on those riffles there would take you off your feet. I made the trip only once that time, again the next fall and eight or ten years after that I used to make the trip (juite frequently in the fall. I never made over one trip in the spring of the year. We usually used the same island as the camping place. I wore the hip boots and usually forded the river at this shallow ])oint. It would never freeze up over the riffles. It would vary somewhat of course after short rains but it would not vary 1154 very much, probably four or five inches. It would be from just above the knee clear up to the hip. I have seen it there when you couldn’t ford it. That spring I couldn’t ford it; it was too deep. I have been as far down as the aqueduct quite fre- quently. It was called ^‘Dead Man’s Hole” down there, around the curve. I don’t know how deep; it was pretty deep I was told. I hav.e gone down to within 20 or 25 rods of the mouth of the Dupage and then turned around and came back. I usually 1155 went on the bank with the gun. I got tipped over once or twice in the boat. I have heard from the early settlers the current reputation as it was when I was a young man as to the history of the early use of the river back in the period before there was a canal. I saw flat boats there on the river and 1156 I asked them what they used them for and they told me they used them a little earlier to carry provisions on. One old gentleman told me there was a boat of grain brought there. That was before my time, when there was a brewery or something es- tablished there. I saw one or two of those flat boats in 1872 and I saw some of them later. They were not in use just then. They were anchored in the still water above Treat’s Island. 466 1157 Cross-Examination hy Mr. Munroe. They were anchored in the still wide water there; it was about 80 or 90 rods up above Treat’s Island. The man that lived up on the hill there, the old gentleman, is dead. He told me they were used for carrying provisions. Those flat boats were, I should judge, 12 or 14 feet wide, 20 or 26 feet long, built up with 1158 a flap over the top here. I saw them two or three times after 1872. A1 Eobinson, Jean Eobinson, John Tyler and J. 1). Schreffler were with me. There ain’t any of them living. Sometimes we would take a camp down Jhere and leave it 1159 five or six weeks. AVe always employed somebody to run the boat down here from Doc Folk’s farm. Once or twice we brought my boat from Plainfield by wagon, but some of the boys here (in Joliet) would most always have the boats we used to hunt with. I never took a boat below Treat’s Island, but the boys did, the ones that used to do the boating. I was tipped over in there once at the head of Treat’s Island, what they call Deep Water. I don’t know how it was. I don’t think it was on ac- count of the current. I guess the other fellow got floundering around a little bit and I lost my balance I guess and went out, that’s all. No, the current was not swift there. On the 1160 riffles it is swift. Our fellows always got up and down with the boat. It wasn’t too swift to take a boat up or down 1161 without getting out. I never done much with the boat my- self. We had to face upstream in fording the river. The current was so swift it would sweep you off your feet. My friend was taken oft his feet and went under, gun and all. I think a l)oat could go up, a boatman that understands running them; by shooting different directions he couIcT get through. I ain’t any boatman. I have seen it done on riffles, but not on 1162 those. I never took much notice. These gentlemen on either side would come down and visit us and talk. These boats tliat I saw (in 1872) were tlie worse for wear. They might have been built, oh, five or ten or twelve years, it is hard to tell. They was water soaked, you know. 467 Charles Hoy, 1166 a witness for complainant, testified as follows : Direct Examination. I live in Will County, lived here before the canal was 1167 opened. I came out in H4. Age 81. I worked on the canal ; helped build the Marseilles locks. I knew of the report of the men being drowned at Dead Men’s Hole near the mouth of the Desplaines. I came up that morning. I worked at Marseilles on the derricks and they ran out of safety fuse, and Mr. Gris- wold out here in A^ankee settlement used to make it. They sent me to Griswold to get some fuse for blasting purposes. When I came up there they told me that the six men were drowned and the boat upse.t. I passed right alongside of the river at^that point. I could not tell how many people there were. They told me there were six drowned that morning and I think a yoke of oxen. I boated on the canal and ran a boat for Mr. Norton and was a hand on a boat before that and I owned a boat myself 1168 in the last years. I worked at Lockport when they were building the basin; I drove a team there. In the spring of the year it came on a big flood and the whole front of it was washed away down into the river and we had to go back and build it up. I fished and hunted up and down, sometimes with torch and spear, sometimes with a boat, sometimes would walk. Cross-Examination by Mr. Miinroe. 1169 I came from Ireland; landed in Canada, came to Chicago, walked down to Joliet on the other side of the river. I did not see any boats. There was not any well-beaten roads from Chi- cago to Joliet. I saw farmer’s teams. They went up there with oxen. They had ox teams and would bring things down from Chi- cago and bring stuff again. That was before the opening 1170 of the I. and M. Canal. The railroad was built in after the canal. Before that farmers here hauled produce to Chicago and brought supplies back by team. I went down to build the locks at Marseilles before the canal was opened. I drove a team from here to Marseilles. I did not go back and forth much. 468 I got a team and hauled sand from Kickapoo. There was a stage running from Kickapoo. 1171 There was a stage that was running through, coming up from somewhere, I couldn’t say what point. I have seen skiffs and the like of that come up and down; I don’t know what they had aboard. I have been fishing up and down the river a great many times. I never saw anything like a canal boat on the river. There was plenty of water at some seasons of the year. AVe could run any boat; that I know. It was not a very 1172 swift river until you came down to Joliet, then it got pretty swift. I don’t know what dams there were when I came here. I don’t remember any. I remember some men being drowned by the aqueduct. I think a man by the name of Blackstone had a contract for building the piers. Questions in cross-examination by defendant’s counsel. Q. And they had a big raft there? A. Yes. Q. That they used to — A. Bring materials up. Q. To bring the material from the shore over to the piers? A. Yes. Q. And they had the men and the oxen on that big raft and it tipped over? A. Tipped over; and I came up that morning, and that’s all I know about it. Q. Did you see the raft they had there that the men were work- ing on, that tipped over? A. I don’t remember whether I did or not. I couldn’t tell you that now. AYe hauled those stone from Aliller’s quarry up here for the coping of that lock, with teams over to Alarseilles. 1173 Kobert Aliller owned the quarry between here and Lock- port. AYe hauled the stones to Alarseilles. There wasn’t any way to get it there. Nobody suggested throw- ing them in the river and taking them down. I couldn’t say how to spell his name. Miller. He was a farmer. I don’t know 1174 how far it was to Alarseilles; it is eight miles this sid^e of Ottawa. I had a skiff on the river at times. I have come to shallow places where I would drag the skiff, and then we would come to a little deeper place and it was all right. Aly fishing was from the double Jocks up to Homeo. I never went below 1175 Joliet. We could take rock bass in the holes. 1 never saw any fences across the river. I saw cattle swimming across the river from the other side. There used to be timber up there then. It was about half way up to Lockport I have seen cattle from the other side swimming across the river. I can’t fix the time of drawing the stone to Marseilles. It was over fifty years ago, between the time when I came in 1844, and when the canal opened. That I think was in 1848. 1176 Re-direct Examination. I didn’t see the scow or flat boat that the men were drowned out of. They were using it to haul material up and down. That is the work. I stopped and they told me six men were just drowned. Re-cross Examination hy Mr. Munroe. I undertsood it was tipped over by the oxen getting too far to one side. Frank Paddock, 1178 a witness for complainant, testified as follows: Direct Examination. I live in Homer, Will County, and have all my life. My father was William J. Paddock. It was a little over four miles to the Desplaines Elver. My father was living there from the time of my birth and before. He came here, I think he said, in 1836. 1179 I have heard my father say they brought ap])les up the river. I asked him how they got supplies when they first came here. Well, he said they brought it in on boats. I don’t know what kind of boats. He said that they brought some from the south and some from Chicago. He said they brought 1180 salt and groceries from Chicago. I have been on the river a short ways fishing in a small boat, three of us in the boat, from the Twin Locks, up north of the penitentiary, as far as Eomeo, generally in May or June. There was a pretty good 1181 depth in some ])laces, 34 to 4 feet. I couldn’t hardly say what it would average all over; considerably more than it 470 would average now. I have noticed the falling off, which I sup- posed was caused by the canal and the land being tiled out, that it drained it oft so there ain’t so many feeders feeding into the river. The river itself has been used to feed the canal. Cross-Examination by Mr. Munroe. I was born in 1851. I will be fifty-seven next month. The canal was opened before I was born. Q. When your father told you about getting supplies in here from the south and from Chicago by boat in the early days, did he not refer to getting those supplies in on the Illinois & Mich- 1182 gan Canal from the south and from above? A. Well, that is what I asked him, and he said there was no canal in. He got it on the river when he first came here in ’36. Father used to go to Chicago once in a while. How he went before the opening of the I. & M. Canal I couldn’t tell. I have heard of people going by teams. My father didn’t men- 1183 tion the names of the people bringing in supplies. I never heard him mention any particular points from which the boats came, nor speak of a dam nor mention the boats going over the dam, nor how they were propelled. Father came from New York. He probably came by 1184 way of Chicago. He came from New York with a horse and wagon all the way through. I have heard him say that. I have been on the river probably half a dozen times. I was able to get my boat along without getting out and pulling it at 1185 any place all of those times. I didn’t have to get out any time I was there. It was about four miles we rowed against the current up to Borneo. The last time was more than thirty years ago. I was a boy fourteen or fifteen when we used to go fishing. Haven’t since. I couldn’t swear to measuring the water; we didn’t pay attention to that. I know there was water enough so we could go with the boat. 471 Eugene Daly, 1186 a witness for complainant, testified as follows: Direct Examination. Age, 82; born in Ireland; came to Will County in 1850. Busi- ness, cabinet maker and furniture store and undertaker. 1187 Place, Exchange street, between Canal and the river. I could see both from the windows. I knew Mr. Norton of Lockport as any young man would know an old gentleman. Had no personal acquaintance. I remember his mill for flour and meal. It was not in the same place when I first came; then it was here on the river. Afterwards it was on the canal 1188 basin. The river was lower than the canal and the water from the canal got into the river. There was a tail race from the mill that carried the water to the river. Anything thrown into the race was carried on into the river. In those days farmers used to bring the corn in in the ear and when it was shelled at the mill the cobs were thrown into the race and carried into the river and a lawsuit grew out of it. Daggett or Panton or both sued Norton for damages on account of the cobs 1189 choking up the race. They were interested in the canal be- cause their mill was lower down on the race. It was common talk after this litigation between Norton and the other parties that they were fools to go to law with 1190 Norton because the state or United States had declared it a navigable stream. They got beat. 1191 Cross-Examination hy Mr. Mimroe. The common report around the streets at the time of the suit was that the river had been declared a navigable stream by the state or the government. Q. By statute? A. Yes, sir. And that was the defense that Norton and Company made to the suit, as I understood it. The canal had been open for two years when I came here. Q. And you never heard, did you, from anyone, at any time, that the river was actually used for the purpose of carrying com- merce up and down? A. No, sir, I never did; because at that 472 time they were interested in the canal and they didn’t care a con- tinental about the river. Q. I see. And you never heard from any creditable source that at any time the Desplaines River was actually used for 1192 commercial purjioses for carrying commerce back and forth? A. AVell, no, but I think here that down below here, what we called Brandon’s bridge, from there, that there was a town originally laid out there and that was known as the head of navi- gation, but how much navigation there was I don’t know, but I know I have heard that frequently. Q. I see. You have heard people say that? A. Well, yes, sir. It was a common — so understood then ; and I have jead of articles by Mr. Woodruff and heard him speak of it. Q. I see. Heard Mr. Woodruff and Mr. Stevens and others speak about that, have you? A. They were speaking of the abandoned villages and like that. I have heard I think of four or five different ones that was in and around this neighborhood, that were abandoned, and it was in connection with that that this one down at what we call Brandon’s bridge. Q. Who ever told you that that was the head of navigation? A. It came up in general conversations about those abandoned towns. Q. Who with? Who was the party? A. Oh, Lord, I couldn’t tell how many. I know I have heard Woodruff especially, because I see the articles — Q. Do you recollect anyone else besides Mr. Woodruff? A. Xo, I would not. I wouldn’t know only from reading a com- munication that he had — 1193 I have never been up on the river myself. I am no sailor. I have seen it from Brandon’s bridge down, and seen boats on it. I couldn’t tell how many I have seen. Charles Clay, 119() a witness for complainant, testified as follows: Direct Examination. I live in Joliet, Will County. First came here in May, 1849. I lived at Lockport over half a century. Have lived in Joliet 473 this time now six or seven years. 1 was a carpenter, worked 1197 at boat building and repairing. The canal was through when I came here. I have heard of rafts coming down from away up near the Wisconsin line. I give you Dr. Daggett as my information. I never saw any. It was late in ’59 or early in ’60 we were talking. I was at work fixing the mill that he owned, known as Daggett’s mill. He told me he owned it all, had been to a good deal of expense, especially in the dam, and that he came pretty near losing it at one time. He said there was a man way up north that was coming down ‘'and I heard several days previ- ous to him getting there that he was coming down with a raft and I had gone to a great deal of expense in fixing up the dam and a goo'd deal of trouble and labor.” “Well,” I says, “what would the raft amount to to you?” He says, “I would have 1198 to open my dam and let them through if they came down here.” He said that this was a navigable stream, laid down on the United States map and the United States surveys. Well, that was something new to me. He told me when it was, but I couldn’t tell the year now. It was something that happened fur- ther back; I judge it would be probably ten or twelve years or such a matter. He might have told me at that time how long it was previous, but 1 wouldn’t remember. Cross-Exciminaiion hy Mr. Munroe. The raft didn’t come down. That is the funny part of it. He said fortune favored him that time. He said they got down with the raft somewhere in the neighborhood of Goose Lake and it struck something and went all to pieces there; he said he didn’t have to open his dam for it. 1199 No, he didn’t tell me the raft got stuck on the ground and wouldn’t float any further. The impression is that it struck something, probably a tree or something like that and was broken to pieces, so that he didn’t have to pay for it. He said he would either have to open his dam or buy the raft or make some negotiations with the owners of it; on account of its being a navigable stream he had no right. He didn’t tell me about the Legislature passing a statute in 1839, but he said it was a navigable stream, so laid down on the 474 United States map. He made no reference to the state statute. I have lived in Lockport straight along with the ' exception of a few months at a time. I was born in 1824, December 21st. That makes me last December eighty- three years of age. 1200 I haven’t been on the river except fishing. I have heard people tell about going with teams. I haven’t heard them tell about the river. I have known its being used for commer- cial purposes by hunters and trappers. They had boats with a cabin on four or five feet high. I liave seen boats with cabins on the river up above Daggett’s mill, between there and Lock- l^ort. I remember distinctly seeing two at one time. I couldn’t state positively as to others. They were 16 to 18 feet long. I was four or five blocks away. There was a cabin so that a 1201 man could get in for room and take his hides and such things. The Daggett dam extended across the river with the ex- ception of a little piece. There was a small opening there. The bank was not exactly connected. I walked over on a plank. I was not there to see it built. It extended across the river when at low water, but the river would extend while overflowed, 1202 over the whole flat. The river and all would be about half a mile wide there. Defendant moves to strike out the answers on cross-examination as to conversations with Daggett. Re-direct Examination. These boats with the cabins on were in use in the fur business. There was a common reputation that the river was used in the fur business. They came up in the spring of the year. I saw them two nr ‘three different times. I wasn’t interested 1203 enough in the river to know as to the raft. I heard it from other sources besides Dr. Daggett. It was general knowl- edge in the community. In the early fifties I was riding into Homer with a farmer named Matt Weaver who fell from his wagon and broke his arm. He says, ^^Now, Clay, you go back to Lockport and get a horse and go over to Dr. Anderson’s,” but I couldn’t get anybody in Lockport to loan me a horse, even for that purpose, not for money; they wouldn’t let a horse go across them flats. 475 I have known sturgeons to be taken out there between sixty and seventy pounds weight. I don’t know the depth of the water there exactly; probably four or five feet. 1204 I was born in Nottingham, England, and came to this country in 1848. Charles E. Keecheval, 1205 a witness for defendant, testified as follows: Direct Examination hy Mr. Munroe. I am sixty-four years old; was born in Will County in 1843, four miles from the river. I know Mr. Stevens. I was in his office at a conversation that was had between yourself, Mr. Stevens and I. We talked about his affidavit. We talked about his 1206 knowledge of the Desplaines Kiver. I don’t remember dis- tinctly all that was said there, but I remember some of it. I don’t remember the number of boats that he mentioned that was loaded with lumber that was brought up there, but I remember it was spoken of, the transportation of lumber. I don’t remember how they got up. I don’t remember what he said in regard 1207 to the way he said of getting up there, getting up into the Desplaines. Mr. Fish’s getting whiskey down the river was talked about. I don’t remember him saying anything about bolts, only this one shipment of whiskey by Mr. Fish, and him saying that he firmly believed it because he was a member of the church, a good church member, that is what impressed it on my mind. I don’t remember about bolts. I remember the whiskey. I never knew of any boats being owned or who owned them. Very few, 1208 from all I ever noticed them. They were a great rarity. Very few boats owned. All that I ever* saw were row boats, pleasure boats. Cross-Examination. I have sat here through Mr. Stevens’ testimony in the same room at Mr. Munroe ’s right hand and within six feet of the 1209 witness throughout his testimony on cross-examination, and through the testimony of most of the witnesses. 476 I have assisted Mr. Munroe in assembling and interviewing and subpoenaing and bringing in witnesses. I have gone out and had interviews with the witnesses named in the notice given by the state. I had interviews with Mr. Heydecker, Mr. Wightman, Mr. Bowers, but not with Mr. Parrent, Mr. Pohl, Mr. Clement and Mr. Brockway. 1210 I have been employed by the Joliet & Southern Traction Company as a right of way agent, securing right of way and negotiating, with parties. I never read law. I expect to be paid for what I have done. Joseph Countryman, 1212 a witness for complainant, testified as follows: Di re c t Examin a ti o 1 1 . My name is Joseph Countrjunan. I will be 67 years old this month. I was born in New York. I came to Will County when I was two years old. I have always lived here, except the time I spent in the army. I was two years old when I came to Lockport on the canal. I lived in Plainfield most of the time. I have seen the Desplaines Piver and been on it in a boat down and back a good many times. 1213 Q. Bid you ever see any rafts being floated down on the river? A. I saw Jim Flanders’, or something, I don’t know what he called it, — a boat of some kind he had. I didn’t ever see any logs or timbers floated down the river, or at any point along the river. I have seen skiffs and boats on the river. Some were 16 to 18 feet long. Flanders had one that was 8 or 9 feet wide, I should think by the looks of it. I saw him going down. It drew l)erhaps 6 or 8 inches of water. It was propelled by oars. Flan- ders had sails u]). We didn’t have sails on ours. We had a boat that we built to fish with. They had their equipment in, camp ecjuipment and everything. 1214 They had their tent and everything in. (Mr. Munroe objected to the question on the ground that the witness did not testify that any merchandise was carried down the Desplaines Kiver.) 477 Witness. I don’t remember any goods they bad on the boat besides the tents and equipment; and they were trapping, hunting and fishing, just for pleasure. Q. Did they unload anything at any point along the river, — any freight — ? A. We didn’t go to their camp. We had been down below and were coming up. I met them down below here. Q. And you didn’t see any loading or unloading yourself? A. Xo, sir. I have been down the river on ])leasure trips several times. AVe came up with our boat the last time I was down there, from the mouth of the river clear to the Joliet Dam, and took it out here 1215 and loaded it into a wagon and took it home. In that boat we had our camp equippage and everything; three of us in a boat and a team going on shore. I noticed the depth of the water in the river on that trip. Some places it was deeper than others. I could not say exactly how deep it was. There was in some places shoals dowm there. AVe had to get out and shove it by hand ; we could not pole it up by poles, it was too swift. In the deep portions below the lake we found some. In the lake it was all right deep. We could not touch bot- tom there in some places. In some places there was not much water and some places you could skip right down a-kiting, but you could not get back up unless you pulled up by hand. AVe pulled it over the worst places and then got in again. AA"e could not pole it up, it was too swift. AVe had to pull it up. The wmter was deep enough, but it was too swift, and there wtis some places 1216 there was rocks sticking up. We had a boat about 5 feet wide and 16 feet long, made of pine. AVe had it made in Plain- field. We kept it for a good many years. There could four men and quite a lot of stutf ride in it. We put the stuff in it that we wanted to eat. We had no barrels. AA^e had the stuff that we thought we needed while we were gone. AVe went down there whenever the fishing season was — sometimes in the fall and sometimes in the spring. I have been down seven or eight times altogether. The last time I wms down there was over thirty years ago. I took one trip down there since the war; the others were all before the war. I have not been down thei*e 478 until since that last trip, went down to Kankakee feeder fishing, with a hook; but I made a number of trips before that time up and down the river. I think there was a ford in the river at Treat’s Island. I 1217 did ford the river some places. At the ford it was not very deep, and some places up above your knees. There was rocks sticking up down there. If you found the channel you could go all right; if you didn’t you get bumped. There was a channel, — there was one ford at Treat’s Island and tliree fords between here and the mouth of the river. I was fa- miliar with each of them at that time. That was a good while ago. I forded each one and the water at some places was above your knees in depth. Q. Did you ever see any boats on the river besides the one wdiicli you were in! A. Why, I saw Jim Flanders with his craft down there. I saw lots more camping down there; who they were I don’t know. There was a good many parties every little 1218 while. You would find camps all along the river. When we were there I would see camping parties, and boats. Q. On which they had transported their camping utensils and equipment! A. I suppose so. We had our boats with us. We stopped several times going down. One place we found Peter Bryan in charge of the camp. We was cooking there. I remember that well. We stopped there quite a long while with him. They had a keg of beer there. We stopped and had some, and we stayed there a while, and went on down. They had boats in their camping party tied to the shore. I could not tell }mu how large those boats were; I did not take much notice of them. They had tents there; I don’t know how they got there. We had no sails on our boat. The only boat I saw was Jim Flanders’ with sails on. I could not tell you what these boats carried. I didn’t go into the boats. I saw them when they were moving along. Most of the time I saw them when they were an- chored on shore. They were camping on the ground; never took much notice; I didn’t ask them what they had. Jim Flanders’ was the largest boat I saw on the river. Cross-Examination hy Mr. M unroe. Q. Mr. Countryman, there never was any boats on the Des- plaines River to your knowledge, except pleasure boats, was there? A. I didn’t see any boats unless the boats that went down for trapping, hunting and fishing; that is all I saw. Q. For pleasure purposes? A. Yes, sir. The last time I came up the Desplaines River was 31 or 32 years ago, the woman tells me. I didn’t see the Haven’s dam in the river at McDonough street. There was a dam near Joliet. "We pulled our boat out there some- where near Jefferson street. We could see Joliet all right. 1220 We took our team out of the barn and loaded our boat and took it home. The only dam I ever saw was down below Jef- ferson street bridge in Joliet. It may be that we took the boat out at the McDonough street dam. The first dam we came to, we took it out. I didn’t know that there was two dams there. We took it out there and put it on the v/agon and hauled it home. Mr. Flanders that I spoke of is Mr. James Flanders, a lawyer in Joliet. He was raised in Plainfield. 1221 We took our boat to Joliet Lake usually, left our team there. We only came clear up once. Left the team in the livery barn last time. I mean we only came up the river once with the boat clear up to Joliet. I never was in the canal. I have seined down at the mouth of the Desplaines River. The current was not very swift when we were there. I hadn’t been there for quite a long while. We used to own a seine, lots of us fellows : I remember swift water at the ford there, — pretty swift, — ^you could not row a boat up, you had to pull it up by hand. We took ours out and carried it over 1222 there. The water was too deep, so we could not wade, so we took it over the worst and then went on up again. We just carried our boat over the rocks there and then shoved it off into the current and then went on. There were other places where we had to carry our boat on this side. I remember the rapids in the vicinity of what is now called 480 Smith’s Bridge, Whitmore’s ford, near the mouth of the DuPage River. I was there. There was only one place there, where we got out coming up here, and I could not tell which one it was, — it was so long ago. We got out and pulled it up, till it got too deep, and then we took it out on the shore and took it up. There was water enough there, — it was too swift. It was swift enough to take me off my feet if I was not careful, — that was the day I was there. 1228 This boat I brought from Plainfield, I used on the DuPage River, and boated in the Illinois River too. Q. You don’t pretend to have an accurate recollection of the ford at this day, do you? A. Not exactly. Q. There might have been six or seven fords instead of three. A. There could not have been but three. I have been across all of them. Q. You mean to say you crossed every ford there was. A. I have been right at all of them fords, yes, sir. The first ford, taking the mouth of the Desplaines River and working up this way, is the one at Treat’s Island. That is the first one I met coming up and I think I have been to all the fords. Q. Well, there was two before you get to Treat’s Island, Mr. Countryman, as have been testified to by people who lived there. A. I camped at Treat’s Island three or four times. I could not tell you how many times I have been at the mouth of the Desplaines River; four or five times. We used to go 1224 seining and spearing. I owned a share in the 200 foot seine. At Treat’s Island we poled it up and then waded and pushed it part of the way, and then the water got above our knees and we carried it around. There were lots of rock there. Jim Flanders’ boat I saw there was not an ordinary row boat. I could not name all the boats that I ever saw on the Desplaines River, because I could not recollect; I have seen (]uite a number of them. Q. At one time did you see 500 or 5 boats on a trip down the river? A. 500 would cover the river all over; I never saw 500 in my life, gun boats or anything else. 481 I have been down there on the river, when the one we had was all we saw some times.; some times I saw a half dozen; I 1225 never counted them. I would only stay four or five days and go hack home. I saw a good many of them little row boats, not fishing boats. We called ours a fishing boat; it was not a row- ing boat ; was made on purpose for fishing. B.e-clirect Exam inaUon. I could not tell you whether these camping parties along the river obtained their supplies from distant points and brought them on the river or not. We took ours with us to last us a week or ten days. I have seen fishermen’s boats from time to time on my trips; supposed to be fishermen’s boats. They were tied up in the camps. I have seen some of them rowing and some of them not. The fishermen’s boats were larger than an ordinary skiff. You could not spear out of a row boat; you would fall out, it would tip up with you. Our boat was flat. If a man wants a boat to spear out of, he wants one that won’t rock; if he does, he will fall out if he misjudges. Jacob Blaess, 1226 a witness for complainant, testified as follows: Direct Examination. My name is Jacob Blaess. My age is 66 years the 28th of last February. I was born in France. I came to Joliet in 1852. I have lived here since. I was familiar all the time with the Des- plaines Elver some, but not much. I have seen logs come down as far as this here basin and then from there they were dumped over the dam and shipped down. They went down to a saw mill that was right below the next dam there called the Haven Saw Mill. In those days that is all I saw. I saw the logs come down 1227 from above. I couldn’t tell you whether the logs come from Lockport or whether they come from the sag or whether they come from Willow Springs. They come along down that way. I have seen these logs being sent down a number of times. They raft them down. I couldn’t tell you the size of those rafts. I never took particular pains to look. They chopped them in two in the water so as to let the logs go loose and then here was 482 where they dumped them rig4it over the dam. This dam they took out down here, and they went down to the saw mills. I guess it was in high water time that they did that. I couldn’t exactly tell. I have seen it done. I stood there many times watch- ing them. Now I don’t remember whether it was in the fall or in the spring. I guess it was in the summer anyway, because the boys went swimming and they used to crawl on these logs and roll them along on the river. Wlien the boys used to go swimming in 1228 them days they used to crawl on the logs. I couldn’t tell the length of those rafts, nor the width, nor the number of logs there may have been in one. All that I seen was loose. They had them apart all right. I don’t know whether they locked them through the lock up there or tumbled them over the dam. I never took any particular pains watching them. I have been down there on the Desplaines Eiver fishing and the likes of that down as far as Malcolm’s Mill and down below the other dam, the third dam that they took out down below. I never was on a boat down that way. Some places in the river it was shallow; some places you could wade across; some places then there would be a hole here and a hole there, the way it is gener- ally in these rivers. I didn’t ever see any boats larger than these fishing boats. I knew of boats carrying goods, freight and 1229 merchandise from Joliet to Chicago, but that was right from here to go up from Chicago and back, that is on the canal. I didn’t see any on the river. I saw nothing below eJoliet. I didn’t ever try to ford the river. I could do that. There were lots of places where we could ford it in low water though. There were places there where it went clean up here (indicating) for a little ways, and then there were places again that it would not be ankle deep. Some places were to the waist. I Jidn’t ford it exactly. We waded in and tried to catch fish and the likes of that where those holes were. I couldn’t see others ford it. AVe pad- died around in the water. Cross-Examination hy Mr. Munroe. I saw those rafts right down here between that dam and 1230 this one tliat they took out here, that is in the lower basin of the Illinois and Michigan Canal. INFy idea is they 48:j came from Willow Springs, or the sag, or Lockport, or I don’t know where they come from, but they came from that way any- how. They came down on the canal. I don’t know whether they locked them through up there or not, hut here they dumped them right over the dam to float them down to the saw mill. The saw mill was right down here a little ways. That is all I know about it. Samuel Gatons, a witness for complainant, testified as follows : Direct Examination, My name is Samuel Gatons. I will be 67 the 9th of next 1231 April. I was born in York State, Eensselaer County. I came to this state in the fall of 1844. I came to this county direct. I have lived in this county ever since, excepting the time I was out in California. I have lived on a farm most of the time within three miles west of here. I am familiar with a portion of the Desplaines Eiver. Of course, I never was up and down the length of it. I am familiar with this jjortion here in Joliet and a little below. I guess I was not more than five or six years old when I saw the first raft come down before there were any dams built up here, and I think before a dam was built down here at Jefferson street. Well, I was most too small to know at that time where these rafts came from. The timber was cut above there. It might have been at the sag and it might have been up at Lockport or somewhere that way. What makes me remember it, my brother came into the house, and he says, There is a lot of logs coming down, two 1232 men on them,” so we all ran out to the bank to see them. I think the logs were to be delivered to Philo Haven’s Saw Mill. It is down here about half a mile from here or one mile. I couldn’t exactly say as to the size of the raft. It might have been two or three or four or five lengths, but then there were two sec- tions when I come to think of it. The next day another section came down and stopped above Jackson street somewhere. As to how many logs there were on the raft, that depends on the size of the logs the way they make rafts. They make them about four- teen feet wide I think. I couldn’t tell you as to whether this 484 raft was in the general proportions or not, because I don’t know. It looked as though there were a great many logs in it. As to the depth of the river along the portion with which I am familiar, at different times of the year, of course, it would be deeper, at dry times it would be more shallow, it would vary 1233 in the dry times. Well, there was considerable water all the time running there in them days, probably more than there is now on account of the timber being cut all over. As to whether there was sufficient water to float these logs at all times I couldn’t say. It is like any river you know that is piled up with stones. When the water goes down it gets shallow in places. I saw on the river nothing but a yawl boat; that looked to me like those boats they have in Chicago on the lake, them little boats ; it was a trapper, a nice big boat everybody was looking at it. There was probably one hundred on the bank wanted to see it. It was probably about sixteen or seventeen feet long, I should judge, maybe six feet wide. I have not any idea how much water it drew. I know we lived right up there by Jackson street at that time, and he stopped there over night, and he showed us the furs that he had been trapping. He had come along from Wisconsin, up through there that way. I saw the furs on the boat. He was showing them to my brothers, a lot of steel traps and 1234 provisions, a tent and a whole outfit. There were provisions on it and boxes. Everything was boxed up, and then I saw several smaller boats after that, trappers. We lived ten years right up there at Jackson street. These trappers transported equipment on these boats. The boats were propelled by oars. It had a sail, now I come to think. The sail was lying down, the ])oles Vv^ere in the boat. He didn’t claim to have any difficulty in navigating the river. I did try to ford the river up there by Jackson street. There were places there the stones would be piled up in the summer time, probably not as deep as the table, about two feet and a half, that is on those riffles of course. There were holes that would 1235 take you over your head, five or six feet deep, scooped out you know. There were places that were deeper and the stones were washed and that would make it shallow, after the or- 485 dinary depth of water at those places. As I grew up in years that was all the way I could judge from that there would he probably from eighteen inches to two feet or two and a half feet where we would want to cross. When it was that I saw the raft coming- down was in the spring of the year. I couldn’t just tell you that. It might have been April, it might have been later. I couldn’t remember the year. I was too small, you know, to remember those things then, but I should judge I was probably six years old, six or seven maybe, not over that. 1841 I was born. I was three and a half years old when we came here, in October. It was be- fore the opening of the canal. There were no dams at all 1236 from Jackson street down to Malcolm’s dam at this time that I saw these rafts coming down. They had what they called a corduroyed bridge down here at Jefferson street, and if I am not mistaken I saw them swing that one time to let a raft through. It was loose you know. Had to just pull it back to its place. I am sure these rafts came down before the canal was opened. Cross-Examination by Mr. Munroe. I might have been ten years old when the dam at Jackson street was built by the people. I don’t know what year. I remem- ber of its being built. My father worked on it. I don’t hardly think I could fix the date when it was built. My recollection now is, when we came here that lock up there was built and the lock at Jef- ferson street I think they were building. Dam No. 2 at Jefferson street was not built. There was an old dam there. There was a lock dam and I think it washed out. I am not positive be- 1237 cause I don’t know for sure. Of course, I was too young to pay more than a passing attention to it. It run over and run that mill that stood between the two bridges there. I couldn’t say that was so when I came here, because all I could see was an end of it. It had washed out, but that was what it was there for. I was not old then. I was from say five to eight years. I didn’t ever go up to Lockport in them days. I didn’t know there was a dam clear across the river just below Lockport. 1238 When I came here the canal was not opened from Joliet north. I guess it was pretty well finished. No, there was no water up where the tow path bridge is. I think I can remem- 486 ber the bridge was not built when we came here. The summer after, I went with my brother and went fishing there. The canal was not open for navigation when I saw the logs. I know that fact because there was no dam there. There couldn’t be navigation at Jackson street. I couldn’t tell you who else saw those logs, them that lived around here. I don’t know where that yawl boat was from that came down the river. I was pretty small. They took me by the hand. Q. You do not pretend to testify under oath here absolutely as to the existence of facts which you think you saw at that early day! A. Well, such things as that I would not be afraid to 1239 stand on them because I know I was very small. I am not accurate as to dates at that time. I have my age all right. I came here in 1844. I was three and a half years old. I was born in 1841. The canal was opened in 1848 or ’9. I know I was just about a little tad when I moved up there to Jackson 1240 street. As to what part of the transactions testified to hap- pened before I was seven years old I couldn’t tell you the dates because I don’t know. I can only remember seeing it. I don’t think they happened after I was seven years old, because there were no dams there when this raft came there, the boats came there, and three or four of the little boats came there, not like the pretty boat; one of those red boats painted, a regular trapper boat. I rode on the third boat that came from Lock- port to Jefferson street. I know I was very nearly pushed off, the crowd was so heavy on the boat. As to seeing a sail on that boat before I was seven years old, come to think of it I heard my brothers talking about it, and they asked him what he wanted to do with that on there and he said there was wide waters below. I suppose he meant that when he got in the wide waters it would go faster. 1241 I didn’t see any^ fences across the Desplaines Eiver in those days. I have seen wire fences now. Q. Were there pole fences across the river anywhere! A. There might have been further down or further up. Q. Were there some opposite the penitentiary! A. I couldn’t 487 remember what was up there in them days. 1 used to go up as far as Jetferson street and up to Jackson street. I am distinct in my recollection that those rafts, on which the two men were, that I saw on the river before the canal was opened, came down the 13es- plaines Eiver. I went out with my brothers. They took me by the hand, so I was pretty small. It was this side of Jackson street in the channel of the river. They were cutting timber to build that bridge too. 1242 Q. How many feet south of Jackson street was it? A. You canT get me into no feet because I don’t know. It might have been ten rods south of Jackson street, that is where I saw the raft. Re-d i rect Exa mi nation. Those men were on it certainly, and they kept driving it around tlie channel. I can remember them running up and down it. Re-cross Examination . I don’t think Dam No. 2 was in the river then. Mr. Munkoe. I want to have the records show that when the witness signs the affidavit for a witness fee he was reluctant in doing so, and that he said he was too young to remember the cir- cumstances exactly. Re-re-direct Examination. I am sure and distinct in my recollection in regard to the move- ments of this raft. It occurred before that dam was built up there, and before the canal was opened, and what I said about the depth of the river at the various fords is what I know 1243 from my own experience, when I was ten or eleven years old. After I was thirteen or fourteen years old I went out on the farm. After that, I don’t know much about Joliet. John W. Taylok, 1243 a witness for complainant, testified as follows : Direct Examination. My name is John AY. Taylor. I am in my 78th year. I was born in New York. I came to Illinois in 1837. I have lived near 488 the Desplaines Elver, right along here ever since, — excepting along in 1858, I think I was in Wisconsin about a year. That was the only time I was absent, and during the war. I am familiar with the Desplaines Eiver, and have seen it in all seasons of the year and many years. I seen logs come down the river in some shape. Sometimes probably in small rafts, 1244 and sometimes scattered. I have seen them in the river. I don’t have much particular recollection about them though, but I seen them in the river floating down. I never saw' any in the river before the canal wuis completed, or I mean after the canal was completed, principally before; along about, — ^might have been ’45, ’6 or ’7. I am sure in my recollection that the rafts did come down before the canal was opened; ’45 to ’47, I would not state particularly just what years. I used to see them frequently in the river and logs coming down in some shape. Well, there might have been probably a dozen logs pinned together there, or such a matter. I don’t know where those 1245 logs came from; I don’t know in particular where they went to. I know they have a boom there at the dam, where the logs were held, that must have been rafted there. Used to see logs there in this boom very frequently in the river. They were there just above the dam, at the saw mill, and ready to be used there. I did not ever see on the river anything more than row boats, skiffs and such like boats. I have been on the river considerably myself, — in boats, row boats; built one here; built one after the canal was built, but before that I was very frequently in boats. I was familiar with the depth of the river. I don’t remem- ber that I ever saw the river at a lower stage than 2 feet, at its lowest stage. I was very frequently in the river wading it and swimming it; and along the banks of the river as far as 1246 Channahon. I forded the river a good many times. I did not ever see any boats carry anything on the river. I seen boats come up the river here that were said to be travelers’ boats, or probably fishermens’, but I never saw any freight carried on the river. I saw evidence, I think; — there was traffic some- where. I know of the general talk or reputation in the neighbor- 489 hood as to the navigability of the river. It was generally consid- ered by everybody of the old inhabitants as being a navigable stream. They always regarded it as a navigable stream. This was long prior to the opening of the canal. That was about 1848, so that it was generally understood in the community that it was a navigable stream. 1247 I was better acquainted with the river before the canal was opened than after. I am pretty sure in regard to the depth of the water, because I was in the river more or less pretty well down. Eafts and boats of various kinds had no difficulty in moving up and down the river. I don’t think I recollect any con- versation about building a bridge over the river. I know in an early day there were two instances I knew of bridges being car- ried off by the water. The two bridges on Cass street were car- ried off by the water. I don’t know of my own knowledge of any traffic on the river, only, I said, what I thought was evidence of it. I lived in Chan- nahon about a year or such a matter along in ’43, and I used to see cordwood piled up on the banks of the river on that ford, 1248 that I know must have been landed there, I think from some boat, because there was no timber anywhere around there. This cordwood was not brought there by boats to my knowledge, but it must have been brought there, because there was no timber near the fordt. I know the people of Channahon cut their wood at the lake. I know a man was drowned in the lake, in crossing the lake, in the spring of the year, while he was cutting wood there at the lake. I think on the left bank of the river the wood was cut there generally. There was good heavy timber there. This wood must have been carried away in boats, I think. Mr. Munroe. I object to the rambling of this witness. Witness. I never seen any boats or anything like that carry any merchandise, but have seen the floating of logs, rafts, etc. That occurred before the canal was opened, and I know that. 1249 Cross-Examination hy Mr. Munroe. I came from New York. I came directly from Ohio here. I came up through Vandalia. I was in my 7th year when I got 490 liere, in 1837. I was up in Chicago, I think, two or three years before the Canal was opened. I got there with the horse team. I met people on the road, going and coming. There was quite a traffic betwixt these places and Chicago at that time. There was not any other way of getting goods between these places and Chi- cago except by team, that I know of, — nor any that I ever heard of. I have been to Channahon on the road. I lived in Chicago between 1 and 2 years. 1250 There was no wood near this ford in the vicinity of Smith’s bridge. On the opposite side of the river from the Channa- hon side, I think there was timber. Q. Do you not remember that there was also a bluff on the west side of the river, that is to-day heavily wooded? A. It must have grown up since then. Well, there was a little timber, I think along the DuPage Eiver at that time from Channahon down. I never heard of a boat being on the Desplaines Eiver, carrying freight or merchandise. I never lived in Lockport. Well, I lived in Joliet, in a house that stood pretty near where the Eock Island station is now. I didn’t know that since 1839 the State Legislature passed an Act declar- ing that portion of the Desplaines Eiver navigable which extends from the upper basin of the Illinois and Michigan Canal to the Wisconsin State line. I never heard of that. 1251 Q. When the people treated or discussed the river as a navigable river, do you know whether or not they had in mind that Act of the Legislature wdiich. declared that river navigable? You don’t know^ whether they did or not? A. But it was generally considered by the people here at that early date, — not only they considered it, themselves, but the Government consid- ered it a navigable river. Q. All you know about that is what you heard the Govern- ment claim? A. Yes. It was discussed here and talked about by the people. These rafts that I saw were along from where I lived, gen- erally. I lived for a time on Bluff street, and had a good view of the river, and I think it was not a great ways from Cass street that I saw these rafts or logs, north of Jackson street. 491 Well, I know I saw these logs before the opening of the 1252 canal, because I was not as familiar with the river after the opening as I was before. I didn’t move awa}^ from the river, but I didn’t have occasion; I was not sometimes steady in town. I worked in the country sometimes after the canal opened. I didn’t have any occasion to haul any produce or supplies from Joliet south, or from points south of Joliet north. I did not know that goods coming from St. Louis came as far as Ottawa and then were hauled by teams from Ottawa to Joliet. I never heard of it. I never heard of anything coming from the south, excepting apples, peaches and things like that. They were fetched here in wagons, not from Ottawa, but from the farms down south, — down from the central part of the state, the southern part of the state. Q. Do you remember that the stones for the locks at Marseilles were hauled from Swahn’s quariy in Joliet to Marseilles! A. No, I don’t recollect that particular. T recollect Swalm’s quarry at the time it was opened. I recollect Swalm’s doing busi- ness here. 1253 All the business I knew of was between Joliet and Chicago, and the teams were coming and going every day all the year around. Mr. Muxroe. I desire to otfer on behalf of the defendant the testimony of Mr. William McGowan, who has heretofore been called as a witness of the defendant; unless there is some objection to his testimony being taken at this time on the part of the coun- sels for the state. Counsel for Complainant. No, I know of no olijection. John McCowan, a witness for the defendant, testified as follows: Direct Examination hy Mr. Munroe. Q. Your name is William McCowan! A. No, John. ' I have been called as a witness in this case before. I testified in my former examination, I believe, that I live near the 1254 wide water, in the Township of Channahon. I went to Channahon Township the 28th day of May, 1835. I knew 492 all the neighbors in the township shortly after I came there, — all that were anywhere near Channahon. Of course, I heard of the others : The Linebargers ; there was the Trite, and the Eibses, Jessups, Morehouse, Schermerhorn, Knapp and the two Tryon brothers. That is all that I knew, — there might have been some others. I knew John and Edwin Jessup. Mr. Prior was a cousin of John and Edwin; I was 9 and he was 18, and I think the Jessup brothers, that is, the two older brothers, were a year or two older than he was. I ainT certain about their ages. I knew them 1255 well and intimately. Often went to their house and often met them. The Jessups lived in a log house when I came to Channahon in 1835. I could not state just how long they lived in that log house, as it was quite a number of years. My father built the first sawed lumber house in the Township of Channahon; it was a small house, but it was a house; and Judge AVilliam D. Beck, — his name is mentioned in ^‘Woodruff’s History of Will County,” — those two buildings were the first sawed lumber houses in the Township of Channahon. The lumber that went into those houses came from Jack’s mill, about four miles north of the village of Channahon, on the HuPage Eiver, and on the east bank of it. These houses were built in 1835, and that mill 1256 was in operation at that time. The Jessups had a log house, and in the rural communities they wasn’t in no great hurry about getting lumber houses, and I cannot say just exactly when they built their house. This old man Jessup’s house,— Isaac Jessup’s house, — him and his two sons, or four sons rather, lived there together in this log house; and how long they lived in the log house, before the farm house, or board house, or whatever you have a mind to call it, I don’t know; that is, I don’t remem- ber. The lumber that the Jessup’s built their house of, part of it came from Chicago. That was a soft wood lumber they hewed the sills out. The soft wood lumber came from Chicago and the hardwood lumber, the same as the joists and studding, in the old house, — the Isaac Jessup house, — the first house east of what is called the Lewis house, — came from Jack’s mill. 1257 I know the Jessup’s didn’t own any boat; I could not say about a skiff, because most everybody had a skiff, or Indian 493 canoe hewed out of a log, but they didn’t have any kind of a boat that you could carry lumber on. They didn’t ever carry any lumber for any of the mills in the vicinity of Channahon that I ever heard of. Q. Mr. W. W. Stevens has testified that Mr. Jessup told him in 1855 that they owned a boat and made frequent trips to saw mills in AVilmington in order to get lumber to build houses for the early settlers in Channahon. Do you know whether that is true or not? A. I know they never had a boat to do that kind of work. I could not say whether Channahon was settled before AVilming- ton was settled. There might have been a little hamlet there. Of course, I didn’t know anything about Wilmington until about 1840. There was not any house built there before the canal with lumber from Wilmington. I know every house that was built there within a radius of four or five miles of me, and the 1258 stuff came from Jack’s mill and from Chicago. When they brought it from Chicago, they brought it sometimes with ox-teams, and some had horses and then they brought it with horse-teams. Q. Mr. W. W. Stevens has also testified that a man by the name of Fish had a saloon near Au Sable, and got his whiskey down from Chicago by boats. A. I never saw^ anything at all at Au Sable until Mr. McNillis built a distillery there. That was about the time of the opening of the Illinois and 1259 Michigan Canal. There was whiskey and such things brought down from Chicago to Joliet. I brought down two barrels at one time with a yoke of oxen. It must have been about 1844, because that was the year we bought our horse team; and teams were going back and forth between Joliet and Chicago, — not every day because they only went when the farmers wanted to carry their produce, and then the Joliet merchants got them to bring stuff down. There was no store in Channahon in them days. You had to go to Joliet for your provisions. Joliet was the 1260 staple town. No, I don’t think people went to Wilmington to get supplies, because Joliet was closer. There was another saw-mill on the DuPage Elver besides Jack’s saw-mill at an earl}^ day, but not so early as Jack’s. That was 494 located about a mile, — no, about three-quarters of a mile down the DuPage, from the road from where the broken bridge is. I testified that I took my crop of corn in the year ’35 to a grist mill at Treat’s Island to be milled. I cannot say when the saw- mill was built at Treat’s Island; that ain’t fixed in my mind; I know it was quite a while after that, — that is after ’35. Cross-Examination. I came to that community in 1835. I was 84 years old. I was not here before that. I came from York State out there. 1261 The Jessup family which I mentioned lived in a log house. I did not see the log house built because it was built previous to 1835. They lived in it to 1834. Jessup and More- houses came here in ’34, and old Judge Peck came from Point Hook Landing. The Jessups and Morehouses came from Sho'dick’s Landing. It was common talk all through the community. The community was not very large. There was the Shermerhorn, Morehouse and Jessup families came from Shodick’s Landing. Quite a number of log houses were built after I came to that point. I saw some of them built and saw them after they were built. The logs came from the woods. There were plenty of woods all around there. They went to the timber and cut them down and hauled them where they wanted them and rolled them up. These logs were not transported on the water, nor transported on wagons part of the way and water part of the way. They were cut right in the timber and transported where they were wanted. Some 1262 of them were transported by wagons and some of them by log chains with cattle on, — twm or three yokes, depending on the length of the log. I’ve seen three yoke of cattle on a log. A great many of the logs were chopped right in the timber that surrounded the mill. There was two or three hundred acres of good timber land, but they did not happen to have much walnut ill that grove, — black walnut; it was principally oak and bass wood. T^ogs were brought from a distance, from our place, which was just about two miles above the village of Channahon. None of these logs were transported by being floated on the water. 1 stated that pine lumber came from Chicago. 1 said 495 pine lumber; basswood is a soft wood, l)ut that did not come from Chicago. Pine lumber came from Chicago because there was no pine in this country, nor even in Chicago, that was shipped down. 1263 The 24th day of May, 1835, there was a raft of pine logs brought down along the lake shore, a mile and a quarter long, and they had to cut it in pieces before they could get it up in the Chicago Eiver. I did not stop to see what became of it, be- cause I left there the 26th. I presume it was hauled out on the beach. There were no wharves and no docks; but I suppose they had teams that hauled them out when they got them loose and they hewed them up. I didn’t state tliis from positive knowl- edge, but I seen the raft come there and I seen them commence to pull them out with teams, but I didn ’t see them manufacture it. I am familiar with the Desplaines Eiver from points nearby, July, 1835, to the present day. I didn’t ever see any rafts or logs either in large quantities or small quantities floated down the river; never saw any such thing, because there was no necessity for it. There was heavy timber, and they even got saw-mills, steam saw-mills, to saw the logs up, — that is, in the later days, andt* there was no necessity for timber to be floated on the river, be- cause the mills were built near the timber. 1264 I have seen skiffs on the Desplaines Eiver which carried equipments. These skiffs would probably carry two men and probably carry four or five hundred weight. I have never seen any boats on the river larger than those skiffs. It would be impossible for them to go a great ways from 1835 until the drainage fioated the water down here from Chicago and from Lake Michigan. I didn’t ever see any boats larger than those skiffs go short distances. L. F. CONANT, 1265 a witness for complainant, testified as follows: Direct Examination . My name is L. F. Conant. My age is 73. I live in the Town of Troy. I have lived here since 1846, two years before the canal was finished'. 49G I am somewhat acquainted with the Desplaines River. 1266 Of course, I have never been around it much. I have never been a hunter or fisher. I have an uncle by the name of J. Goodnough. I couldn’t tell you the year my uncle came to Illinois. It was somewhere either before I was born or after I was born, that he was here, but I have heard him fell the story a number of times about his journey from the east to St. Louis. I can tell you the story as I heard it, just as my uncle told it to me. He said that he came to Chicago and on their way to St. Louis he was a saddle maker and thought he could go into business there, he found out at Chicago that by taking the Desplaines River he could go down to St. Louis, and there was two other 1267 men with him and they either got a boat there or at the river, I couldn’t say which; and they went down through here. He described going through Joliet, and down at Morris; he described a stream going in on the west side, south side of the river I would say, and just below that an island, and south of the island was prairie; that was Morris. He said it was as near as fifty or seventy miles from Chicago, as he could remem- ber, where this island was located. He said they saw some Indians on the prairies close by thd river, and when they got down there the Indians wanted them to stop but they kept on, and the Indians shot at them, and they laid down and drifted on the other side of the island, but the In- dians didn’t follow them. They had no trouble the rest of the journey. They came on the boat all the way. I couldn’t say how big it was, but big enough so they carried their camping utensils and the three men and provisions for the entire journey. I couldn’t remember the dimensions of the boat, I remembered it because I have heard the story told so many times, and 1268 after I went to Morris I called my mother’s attention to it as he des/*ribed it, and she says, ‘'Yes, that is just as he de- scribed it. ” I couldn’t say where they got the boat, I am sure, either in Chicago or else they bought it of the Indians there on the river. They started their journey from a point west of Chicago. They found out by going west from Chicago to the river they could go 497 down the river all the way to St. Louis. I never lieard my uncle say that they encountered any difficulties in having the boat go over that distance. I suppose if they had lie would have men- tioned it. Cross-Examination. I came to Buffalo on the canal boat from Utica, and from Utica, or Buffalo, to Chicago, on the steamboat Illinois, Captain Blake, and from Chicago by wagon to New Lenox. That was in 76 — 46. There were not any railroads at that time down in this territory; that was two years before the Illinois and Michigan Canal was built. 1269 Q. How did it happen that you came all the way from Chicago by wagon to New Lenox! A. There was no other way. Q. Did you inquire if there was any other way to get down there! A. No, my brother-in-law met us there in Chicago with a team. Q. How did you know there was not any other way going down except by wagon! A. I couldn’t sa}" as to that. Q. But your understanding was there was no other way to get into this country except by wagon! A. We didn’t have to have any other way, because they met us there. We met teams on the road to New Lenox going to Chicago with grain. After we stopped at New Lenox, I went to Belvidere, Boone County, and I was there a year. I came back here after be- ing there a year. I staid in New Lenox a year. I didn’t go to Chicago for years after that. I think the first time I went to Chicago was at the time this Eock Island Kailway ’s first 1270 passenger train ran over. I couldn’t tell you when the Eock Island’s first train ran into Chicago, along in the ’50s somewhere. That was the first railroad that went through this section of the country. I was living in what is called Spencer Station on the cut-off railroad. The cut-off railroad was not built at the time I got there. Some of my neighbors did go to Chicago while I was there that year. They went with a wagon mostly, and horses and oxen. They carried their produce into Chicago by wagon. Q. And tliey brought their supplies and things hack from Chi- cago? A. Well, if you can let me tell it as I know it — 1271 Q. Yes, yes, you tell it? A. They used to go to Chicago with grain from New Lenox, and they fetched back goods, salt and other things. That was all the market they had that time. Q. Did you ever hear of any of them going to Chicago by boat with grain or other produce? A. No, not until after the canal was built. (<). Did you ever hear of any of them bringing supplies by boat? A. No. I have been on the Desplaines Liver with parties fishing. I don’t think I ever saw any boats in the Desplaines Liver carry- ing freight or merchandise. I didn’t ever hear of any. I couldn’t say how long my uncle has been dead, because when we came away from New York State, we heard nothing from them until years afterwards. I had another uncle there that wrote of his death, but what time 1 couldn’t say. I saw my uncle that went down to St. Louis the last time just before we came to Illinois in ’4(i. I was twelve or thirteen years old then. 1272 I have heard my uncle tell this story I have narrated two or three times, and also my mother told it afterwards, because it was a great thing in that section of the country to take such long trips as he had. He went down to Cairo and up the Ohio Liver, and around home that way. The folks thought that he was dead because he wjis gone so long. 1 couldn’t say where he put his boat in the Desplaines Liver when he left from Chicago. It was near Chicago where they put the boat in. I couldn’t say the distance. He didn’t say the dis- tance in his statement that he told about ^lorris. He said as near as he could judge it was fifty to seventy-five miles to where the Indians shot at them. He said they went down the river 127M all the way from where they got the boat. T couldn’t say whether he got the boat at Chicago or west at the river. 1 don’t know as he ever stated that. He said Joliet was here. He said he could see something of a ford on the bluff. There were some planks sticking there when I came here, up here where 499 Mr. Marsh lives. There was a ford here. I presume the folks that lived here built it. He didn’t tell me there were any dams in the river. I couldn’t tell what year he went down to St. Louis. It was sometime either before I was horn or shortly after- wards that he took this trip. He didn’t tell me in particulai' because I was small, but I heard him tell the story so many 1274 times, and especially about the Indians. I couldn’t tell you what year it was. I was born in ’85 or ’86. James H. Herrtss, 1 a witness for complainant, testified as follows: Direct Excnnination. My name is elames H. Ferriss. I live in Joliet. I have lived there a little over thirty years, thirty-two. I heard of Mr. Henry Fish selling whiskey at Aux Sable. I suppose it was a sa- 1275 loon. In those old days grocery stores sometimes sold liquor. Most of the grocery stores in the old days sold liquor. That is all I ever knew about it. I have heard that repeated a num- ber of times, and it was generally known through this community that liquor was sold through that point. It was before I came to the town. I don’t know how far back it was. I know it was a good ways back. My impression would be that it was after the canal was dug, but I don’t know whether it was at the time of the digging or not. I suppose it was way back in the 1276 early days of the canal at least. I couldn’t tell within a dozen years. I suppose I have heard it mentioned, but I don’t re- member now. I wasn’t particularly interested in it, of course. C ross-Exa m i nation. Mr. Fish was one of the early settlers. He wasn’t the first but he was a very early settler. He was the father of Charles Fish, who resides here in Joliet. I am the editor of the Joliet Daily News. I have been fa- miliar with the Desplaines River since about ’88 or ’84. I have been up and down it a number of times and along its banks and observed the river, as I have seen it walking up and down its banks. I have never seen any boats on the river carrying freight or merchandise. 500 Q. Did you ever hear of any boats carrying freight or mer- chandise on the Desplaines Eiver! A. Well, in that time, I never have. I have heard of it before that, of course, in the early period, that is, voyageurs going up and down. I have heard 1277 that voyageurs, missionaries and explorers have gone up and down the river. It seems to me that I heard that Fish carried some whiskey down in a boat. I don’t remember who told me that, that is since this case came up. By this case I suppose I refer to the case of the People of the State of Illinois against the Economy Light & Power Company. There may have been other cases. I am not very well posted in this case. I don’t know who I am testifying for or what the case is about. One of the boys attends to this affair. Be-direct Examination. I have heard from general points there were voyageurs up and down the river in the early days. I meant the early explorers, Marquette and La Salle. Chables Dimmick, 1278 a witness for complainant, testified as follows : Direct Examination. My name is Charles Dimmick. I live at Lockport. I am em- ployed on the Illinois and Michigan Canal. I am assistant super- intendent under Mr. McDonald, and worked on the canal since the fall of ’71. I was off during the Altgeld administration and once for about three years. I am acquainted with the various parts of the canal. I am acquainted: with the Kankakee feeder. I have done work at the point where the Kankakee feeder joins the canal. I did work there before ’88, in the year 1888. In ’87 I done some work. Well, I don’t know that I can fix any work I 1279 done on there, except to go and look at the locks and then up at the head of the feeder. I have an old memorandum that I used to keep of items of work that I done from day to day with my men. I was foreman on the canal at that time. I made these entries in my records showing the date and what work I done at what point, and a description of the nature of the work. I made them in my regular course of business from day to day. 501 and made entries of the actual business conducted that day, so that T could remember them myself, with sufficient detail and accuracy that I could rely on them perfectly, and the dates are correct. Thereupon counsel for complainant offered said books in evi- dence. (Objected to on the ground that it had not been shown any part of the book kept by Mr. Dimmick was material to this inquiry.) 1280 I did work at that point a number of times and this work that I did I made a memorandum of in the books which I have mentioned. Water does not now run from the Kankakee Feeder to the canal, but it did at one time. The feeder was blocked up and closed up at its junction with the canal. Q. Eefresh your memory by anything that you have? It was on April 3rd, 1888, I closed it myself with my men. I built a dam across the mouth of the feeder where it empties into the canal to shut off the water from the canal going into the feeder, and also tore up some planks at the other end of the feeder to let the water that seeped in there run into the river; that was on 1281 Tuesday. And on the 5th I was working below Morris tak- ing out a dam they had in the canal in the aqueduct there, and got word from Mr. Layton, who was superintendent there; or Mr. Brown, the commissioner, that the dam at the feeder was leaking, and I w^ent back and repaired it. That was two days after. That makes it April 5th, 1888. Before this feeder was blocked, the tow-path was cut by it. It passed through the tow-path at that point at a bridge over the feeder, making a continuous path for the tow-path walker. After I closed up the feeder, I just built a little dam in front there, and shortly afterwards Mr. Keough tore it out. I have not that date that he tore that out, although I had some men working there at the time with him. I took the stone that was in there and tore that down and put ’it on the banks of the canal as riprap afterwards, down as far as the level of the tow-path on each side and tilled in between the abutments so that the tow-path is now one continuous tow-path. The bridge over the feeder was re- moved so that after tilling in there was no water flowing over from 502 the canal to the feeder or from the feeder to the canal, that being made solid by what I filled in. I did this in pursuance of instruc- tions from the superintendent, J. M. Layton, in 1888. There was water running in the feeder. On Wednesday, August 10th, ’87, I put a load of manure in the aqueduct at the feeder to stop the leaks in there. Of course, the water was running at that time. Then on November 7th, ’87, on Monday, I drove up to the head of the Kankakee Feeder by instruc- tions from Mr. Layton. I examined the lock and lock gates at the head of the feeder and found they badly needed repair. The stream of water at the point where it joined the canal at the time there was water flowing to the canal before filling in was about five feet or eight feet deep and I should judge about fourteen to sixteen feet wide. There was a square opening there at the canal; 1283 it was not wider at the top than at the bottom. It was on the days that I did the work that I made that memorandum of the work, in the evening always. Counsel for Complainant. I want to put in evidence the par- ticular book which shows the evidence of these transactions which Mr. Dimmick conducted there. Mr. Munroe. I will object to putting them in evidence and in- struct the witness he is not obliged to give up any of his papers in this case. Witness. I don’t care to. I have little items on here and I don’t care to go all through them. Counsel for Complainant. You keep the custody of these books. Witness. I will keep the custody of them, yes, sir. Up to 1887, when I went up there to examine, there was water in the feeder and she was feeding into the canal. I was down there with my repair boat that I brought my men on. In the spring of the year, I always ran down with men, wagons and teams and cleaned out the bars, and at that time I built that dam, and a few days later I got my boat at Channahon and got into it. Up to 1284 the time that I built this dam cutting off the feeder from the canal, the water hadn’t run that spring, hut there was noth- ing to ])revent it from running. There was no embankment that had been built at that time to sto}) it from running into the canal. rm I also put in a little dam. I cut a hole through the bank of the feeder above the aqueduct and put in a box there to carry in the I'ain or fall water that happened to come down there in the head of the feeder, so that it could run out into the river without pouring into the aqueduct. Cross-Examination hy Mr. Munroe. The aqueduct across the Desplaines liiver, which was supi)orted on piers that are now in the river, is entirely gone and was taken out during Altgeld’s administration. I don’t know just the 1285 date that was taken out. It was taken out by the canal au- thorities. It would require considerable repairs on the ])iers to sup])ort an aqueduct now if one was desired to be replaced. Q. Is it not a fact they are leaning and out of pluinl) and dis- integrated, so that if the aqueduct was even constructed the piers would have to be rebuilt! A. That I do not know. I have not examined them with that in view. It is not necessary to feed the canal from the Kankakee Eiver now. We have water in great abundance for all purposes of the canal from the Channa- hon level and the Du Page River. We have had that for a great many years. The guard lock that existed between the Desplaines River and the canal on the north side of the aqueduct was built of timbers. It was a timber lock. It was intended for locking boats. I had used that years before, although I went up with a repair boat to the head of the Kankakee River and repaired that dam be- fore this, and I have heard that boats ran up, that is to boat stone from the quarry up there and ran up as far as Wilmington. 1286 I never saw that. That was before my time. I didn’t ever see a regular canal boat on the canal feeder. I have seen other repair boats on the feeder and other freight-carrying boats. They used to boat tile up there on little freight boats. If they ever desired to use the Kankakee Feeder in order to make it feed into the canal, I don’t know for sure what would be necessary to be done, but I should think the Kankakee dam would have to be re- built entirely, and I don’t know whether the locks would have to be rebuilt, but new gates would have to be put in anyhow. I have not examined the abutments of the dams and the locks that were formerly at the head of the feeder of late years. I don’t know 504 wlietlier they are all tumbled down and ruined or not. You would practically have to build a lock on the north side of the aqueduct to go into the canal in case the feeder w^as ever opened for naviga- tion. On the north side of the Desplaines Eiver between the Des- plaines River and the canal that lock is all tore out. There 1287 inay.be some old timbers in the bottom. From time to time, it was taken out, a good deal of it, by the tow-path walker, and I guess some of the canal men took out some of the gates and saved the iron. The tow-path walker there took out the planks and the old lock there seven or eight years ago. I donT know the condition of the feeder now. I think there are some fences across it. I have heard there were. I didn’t see them. Whereupon the taking of depositions was adjourned to April 15th, 1908, at 10:30 A. M. Here follows a separate oath for each witness as follows : A. C. Clement, W. W. Stevens, H. H. Spoor, Urias Bowers, Isaac M. Johnson, Mikarl Anderson, Gr. S. Wightman, James R. Flanders, George W. Raymond, Obadiah Hicks, F. P. Belz, Henry R. Pohl, George A. Parrent, George Abbott, Edward D. Brockway, Eliza P. Jones, S. W. Jones, B. W. King, Charles Hoy, Frank Paddock, Eugene Daly, Charles Clay, Joseph Countryman, Jacob Blaess, Samuel Gatons, John W. Taylor, L. F. Conant, Charles Dimmick, Riley Tanner, William Found. Here follows certificate of Commissioner. DEFENDANT’S DEPOSITIONS. (Filed April 21, 1908.) Notice of taking of depositions, venue: Caption of cause. 1304 Notice addressed to complainant’s counsel that on Thursday, January 16th, 1908, at 9 A. M., before Fred A. Hill, a Master in Chancery of the Circuit Court of Will County, Illinois in Joliet. Depositions of witnesses named will be taken, said taking of said de]msitions to be continued from day to day until completed. De- fendant deems testimony of said witnesses necessary in said 1305 cause. Witnesses names: W. S. Myers, and Stephen Dowse, residents of Lockport, Illinois, Stephen Bedford, resident of Cbannahon, Illinois, Navier Munch, David Layton, lYilliam Burt, 505 N". L. Cook, Eiiben KiOmer, Jacob Adler, Adam Comstock, Charles Kerclieval and W. W. Stevens and other witnesses. Dated: Chi- cago, Illinois, January 4, 1908. Signed by defendant, l)y his soli- citors. Acknowledgment of receipt of notice by Alerritt Starr, Special Counsel for Complainant in above entitled cause. 1307 Commissioners^ Introduction. Depositions of George Alexander, Stephen J. Williams, William S. Myers, George F. Gurner, Xavier Munch, James Boa^ne, Louis K. Stevens, Jacob Adler, William S. Burt, David Lay- ton, John P. King, Adam Comstock, James C. Keen, Enos Field, Urias Bowers, Oliver S. Chamberlain, Seneca Ham- mond, Peter O’Brien, Franklin Collins, John ]\[cCowan and R. W. Killmer, produced, sworn and examined on their oaths on January 16, 1908, and thereafter on days to which hearing was continued, on agreement of parties at the office of Frederick A. Hill, Master in Chancery of Will County, Illinois, pursuant to at- tached notice in above entitled suit. Said witnesses being first duly sworn, testified and deposed as follows: 1309 Stipulation. Title of cause. It is hereby stipulated by and between counsel that the mas- ter before whom depositions are to be taken under attached notice, may cause testimony to be taken in shorthand, by stenographers and typewritten from notes; that witnesses need not sign 1310 their testimony; that stenographers’ fees may be taxed as part of the costs, as the court may allow, to apply only to the official copy. This stipulation shall not be a waiver of the objec- tion made by complainant to the taking of de])ositions before an- swer filed. J. C. Fitch and Walter Reeves, For Complainant. IsHAM, Lincoln & Beale, W. E. Porter, Solicitors for Defendant. 1311 Counsel for Complainant. We object to the testimony 506 of any ^Yitnesses, because no answer is filed to the bill, and therefore no issue is made. George Alexander, 1312 a witness called on behalf of the defendant, testified as fol- lows : Direct Examination. My name is George Alexander. (Objection by counsel for complainant to the taking of depo- sition of said Alexander, on the ground that his name was not included in the notice.) 1 live in the Township of Ohannahon, in Will County; have lived there from the fall of 1838. I was one year old at that time; my father moved there then. I have lived there ever since, except when out in business through the country. My home was about forty rods from the Desplaines Kiver on the south side. 1313 That was in the vicinity of what was known as Smith’s Bridge. I recollect when that bridge was put up. There were two or three bridges before that. When I first came there my father was engaged in the building of this Illinois and Michigan Canal. He was foreman of a quarry in Section 21. I own part of that section now. I think he was fore- man about a year or so after he came there. That stone quarry was right where I live, about ten miles from Joliet down the river. My home is about four miles from the site of the dam which the Economy Light & Power Company is constructing near the mouth of the Desplaines River; that is, if you take the road zigzag, on the river. 1314 My father did not own the farm at this homestead at that time. He bought it right soon after. They had paid off the work with Canal Scrip, and he bought some more and paid them in Canal Scrip; 33 cents on the dollar it was worth. 1 guess he got the farm property near the time the canal opened, about 1848; 1 won’t swear to that, but that is my opinion. He bought forty acres first; bought a piece in Section 15, another 80 in 22 and that piece on Smith’s in 21. That split that quarter section line. The bridge is on the quarter-section line. He died a young man in September, 1856. Up to the time of his death he cultivated the land some; was generally on public work; helped to build this feeder to the Illinois and Michigan Canal. Since his death, I have occupied that land and cultivated it. 1315 I raised corn, hogs and cattle. I do not think my father shipped any grain to the Chicago market while he was on that farm. Kailroads were not running much at that time. He hauled wheat with three or four yoke of oxen and sold it at 37^ cents a bushel ; hauled it down through the country there. After his death in 1856, I shipped grain to the Chicago market. When I was quite a young lad, I fed up and bought a good deal and shipped on the Alton and Santa Fe; that was later of course. I never shipped any produce from that farm to Chicago by boat over the Desplaines River. I guess nobody else ever did, that I saw go up there. I have lived all my life on this river. Am familiar with it from, say Lockport, to its mouth. I swam horses through every mile from Lockport to the mouth of the Illinois River, where the Des- plaines and Kankakee go together — pretty near every mile to cross the river. We had to get across the best way we could. We had to jump in and swim. 1316 I was familiar with the condition of the river before the construction of the Illinois and Michigan Canal. I was not so well acquainted right in Lockport at that time, because I was a young kid. I remember when they took out the stone for the Channahon locks, out of this quarry around Section 21. I was familiar with the river from Joliet down to its mouth. We used, when we were young fellows, to go out fishing nights, and would go up these riffles and pull away and go over. There are rapids between Joliet and the mouth at Treat’s Island. There is a little island there, and a pretty strong current. There 508 Alexander, — Direct Exam.— Continued. was shallow water there. Little row boats could go over these rapids, take the oars and ride down, in ordinary water. 1317 Before the canal was constructed, right down at this side at Smith’s Bridge, there was IJ feet of water in the deepest l)art, right on my land, right on his farm and mine together. During the summer season we had freshets, back snows up north that would come down the river here. They used to have a gorge the same as at the mouth of the Kankakee, and that would back the water up on us. This bridge was finished in December, 1865, and in February, 1867, I think, there was a gorge down there and this bridge was not anchored and the water came up enough to go over the piers. Not during my recollection was it ever possible, before the con- struction of the canal, to run boats up and down at the point where the Smith Bridge is located; boats for commerce, carrying passen- gers or freight. Q. Has there ever been a time, Mr. Alexander, when boats for purposes of commerce ever actually ran up and down -that river, l^etween Joliet and the mouth of the river, within your recollec- tion! (Objected to by counsel for complainant as calling for an opin- ion and being immaterial, incompetent and irrelevant.) 1318 A. No, sir. No boat running up there, and nobody else has. Q. You never, in your lifetime, saw any boats running up and down the river between Joliet and its mouth or between Lockport and its mouth, for the purpose of commerce, carrying freight and passengers ! (Objected to by counsel for complainant, for same reasons as last previous objection.) A. No, sir, I never seen it and nobody else has. Q. From your knowledge of the river, was it ever possible to run ])oats up and down that river between Lockport and its mouth for commercial purposes? (Objected to by counsel for complainant as irrelevant, incom- petent, immaterial and calling for the opinion of the wit- ness.) 509 A. Not in the Desplaiiies Kiver, no, sir. Kan l)oats in the canal. The Witness. There is a riffle above Smith’s bridge; it was not possible for boats to go over that during summer season, un- less they made some improvement. T have never seen it only in seasons of high water. 1319 According to my best recollection, that is true also of the riffle and rapids at Treat’s Island. Hunters used to go down there in skiffs and camp; put up tents. There were no boats that went up and down it. There is another riffle in the Desplaines down below Smith’s bridge, at Whitmore’s place. No water down there over two or three feet at any time. The mouth of the DuPage runs into the Desplaines right there. The water was pretty swift at that point. It took a good man to pull a boat up stream. It could be done in stages of high water. I pulled a skiff over there; of course it was pretty hard work. We would go up there hunting ducks. Q. Was it ever possible to take boats up there for commercial purposes, carrying produce or passengers over that riffle at any time ! (Objected to by counsel for complainant as incompetent, ir- relevant and immaterial, and calling for the opinion of a witness who had not been qualified so as to base an opinion.) A. No, sir; not in my recollection, never was. The Witness. I never in my lifetime saw a boat or knew of a boat carrying passengers or produce from market going up that river. Never heard of any such boat going down the river, outside of what I told you of the men going out for a little time in the boat and float down the river. That was just a skiff — boats going out for pleasure purposes; at certain times the skiff could only go in certain places in tlie river. In the summer 'time during ordinary stages of water a well- loaded skiff could not go over those riffles. They had a stage route from Chicago down through La Salle. They used to make stands there at Channahon. 510 A I exa u d er, — D i rect Exa m, — C onthnied. 1321 I do not think supplies that were used by the farmers in that vicinity that were obtained at Chicago, were obtained over that stage route. They drove teams. Had a little wheat or something and took it to Chicago and traded it off for supplies and brought it home with teams. I never, in my life, heard of any supplies or produce being brought from Chicago down to that vicinity in boats on the river. I remember the aqueduct that is located down near the mouth of the river, at the point where the old Kankakee feeder is. They built it right about the time they finished up the canal ; if I remem- ber right, the canal was navigable in the fall of 1848. It was somewhere in that neighborhood that the canal 1322 began operations. I remember that some large stone were used in the construction of that aqueduct. They came off of this piece of land that Smith and I own, in Section 21, belonging to the canal at that time, off Smith’s farm. There are big quarries on the side right west of me in Section 21. I saw them hauling them; rode on the teams that hauled the stone down to the An Sable. Those stones were conveyed down to the aqueduct by horse teams and ox teams ; any way to get them there. Forded the river above the Smith bridge. I rode on the wagon. To my knowledge, none of the stones were conveyed down the aqueduct by boat. 1323 Q. AVould it have been possible to have conveyed them down there by boats, from your knowledge of the river? (Objected to by counsel for complainant as incompetent, ir- relevant and immaterial and calling for the opinion of the witness.) A. Xo, sir. Xot without a great deal of work and improve- ment there. The Witness. In that state, the river as it was then, it would not have been i)ossible. I am pretty sure that not any of the stones used in the building of that aqueduct came from Joliet. I say they did not; that is right. There were a few stones picked at the mouth of Prairie Creek that runs into the Kankakee, but the majority of the stones came from our quaries ^wliere Prairie Creek goes into the Kanka- kee. 1324 There was a quarry started there, and they used a great deal of the stone when they built tlie dam across at the mouth of Prairie Creek, 40 rods below the mouth, and there was a few stone used in building that lock there. I remember dams in the river when I was a young l)oy. I do not think that I know of any prior to 1848 l)efore the completion of the Illinois and Michigan Canal, but there is a dam right near Mr. Mills. There was a dam kind of west of where the Economy is now constructing a dam; the dam they ran their mill with. I saw that dam over there, across, below it. That extended clear across the river. There were not any locks in that dam. They had a race there so they could get power for the mill. It Avas a closed dam all the way across. .1325 I do not remember when it was l)uilt. My father and me went down there. I would not say that I remembered the existence of that dam prior to 1848. I do not know whether it was there before 1848 or not. I was born in 1837. In 1848 I was 11 years old. I remember the dam that was on the north branch of Treat’s Island. They had a race right across there that ran into the mill there. That was on the north channel. That was pretty much a closed dam clear across the channel. It Avas not a very big dam. There was no provision for any boats to go through there. 1326 I do not remember about the time when the dam at Treat’s Island was constructed. It Avas before 1848 though, l)ecause I kneAv they had a corn grinder there and we used to take corn from home and go there and have it ground. I think I saAv that dam at Treat’s Island before 1848. I do not remember any other dam in the river prior to 1848, besides the Beard’s dam and Treat’s Island dam. I do not remember the existence of a dam in Joliet right aboA^e 512 Alexander , — Direct Exam. — Continued. the J efferson street bridge, prior to 1848, but they had that dam to back the water to run down and feed the canal. They had that dam for the levels of the canal to cause the water to run down. 1327 The dam has been there since my earliest recollection. I do not remember the existence of any other dam in Joliet prior to 1848. I remember there was a dam called Haven’s Dam, near Wal- lace street. It was a grist mill. I remember the existence of a dam in Joliet where the plant of the Economy Light & Power Company is now. I saw it there — I do not remember when they built it. It was built there at an early date. Q. You know it was there from an early date; that is at Jack- son street in Joliet, that is called dam number 1, was there a dam at that point where dam number 1 is now, since your earliest rec- ollection! A. Well, I told you I was a young lad. I did not have much business around Joliet. I was around the vicinity, I remem- ber, and knew what was going on, but I think there was a dam below where there used to be a grist mill. Witness. I do not know what they called it. They used to grind corn and make flour there. Prior to 1848 the people had to go across the river the best way they could. Some places they could ford it, and when they could not, they went over in boats. 1328 There was not any bridge in Joliet until you struck Mor- ris and the bridge at Morris was over the Dlinois River. Between Joliet and the mouth, I have forded the river prior to 1848. I drove a hundred head of cattle across and swam the horses after them. Prior to 1848, before any bridges were constructed, there was a ford down where Brandon’s bridge is. It was not a very good one. It was not a very safe ford, and you could ford it there at Treat’s Island; go across the south branch and go across the island and ford the north branch, and then they used to ford across where the DuPage runs into this branch. That is all there 51 :^, was over there. Then that ford in tliis Beard’s dam; below Beard’s dam. I do not recollect any bridges across the river below Joliet prior to 1848. 1329 We put up a bridge there where Smith’s Bridge is, as you call it — a frame bridge. It was not there a great while be- fore it went down with a load of grist and a pair of horses, and we put in another bridge and then in ’65 w^e let the contract to F. E. Hinkley and they built this covered bridge there, that is Smith’s bridge. The first bridge built there I think was built along in the 50 ’s — 1852, somewhere along in there. That was about the first bridge across the river, below Joliet, that I recollect. I do not remember when it was put up. I do not know exactly what year it was put np. There may have been some bridges in Joliet before that time. These early dates I cannot give as correct as what happened later. 1330 The several fords that I have mentioned hack before 1848 could be used at all times during reasonable water in the summer time, except during a freshet. Were two fords at Mills- dale, and one across by Mills House; another one of them on the north branch struck the Island, and there was one at the foot of the island. This bridge that was built at the point where Smith’s bridge is now. The first bridge built at that point was not a swinging bridge so that steam boats could go through it. I am familiar with the various bridges that have been built in recent years across the river between Joliet and the mouth of the river. I do not think any of them are closed now. They are not swinging bridges, all iron bridges now. . When I said closed bridges, I referred to whether they were covered or not. The one we built in 1865 w^as a covered bridge, sided up and roofed over. It stood there until about 6 or 7 years ago; the 514 Alexander, — Direct Exam. — Continued. abutments began to fail. It would have been standing there yet if it was let alone. 1331 I remember that on this Davidson property the river was fenced clear in, and there was across that bridge, over Bran- don’s bridge, right across Brandon’s bridge on the river, I re- member there was a fence laid clear down on the river quite a ways, but I did not pay much attention to it. That was at the south end of Joliet. I do not remember that there was a fence for many years across both channels of the river at Treat’s Island. I know Treat’s Island was fenced because otherwise cattle would cross over in there and eat the crops. The fence on Treat’s Island was right around there so as to keep the cattle from crossing the river and getting on the island and eating up the crops. A considerable part of the land that my father owned and that I now own, was on the bank of the river. It ran down to the river. 1332 I did not fence the land down to the river, because the part where we owned was in a bog. There is quite a little lake around there before you come down to my place and the water was deep and the cattle very seldom swam through and we did not put any fence along the river. Our fence at right angles to the river ran out in the water a ways. I do not think the farmers all along the river below Joliet fenced their lands in the same way. At Whitmore’s there is a regular fence along there; that used to be all opened, and they fenced up the DuPage. When the far- mers did have fences at right angles to the river, they ran them down to the water’s edge and out into the water a piece so stock could not go around. There were very few fences there in 1848. The land along the river in Section 15 and this piece in 1333 21 and a quarter section in 22, we got hold of. I think Mr. Glynn, an uncle, came there soon after that. !My father got 515 killed in 1856, and I fenced the land in myself shortly after my father’s death. 1334 We used to have old log canoes and boats out of the sid- ing and some ont of plank — skiffs carrying 2 to 6 men. We used to have these little Indian canoes, just to carry two in, if we would sit still. Those were used for transportation of people that had no other way of going across ; did not have horses. 1334 Cross-Examination . I was born on the 27th day of October, 1837, seventy years old last October. I have lived right in the vicinity of Channahon, 1335 during all that time. It is built on a line between Sections 22 and 15. That is the farm that I have described in my tes- timony. When I was a year old, my father moved there; have lived there ever since. Have been travelling around a little bit, but that was my home. I have been a jack of all trades, from farming I have been a stock raiser, and raised hogs, cattle and horses, and buy and sell most anything that comes along. My business has taken me along a course of the Desplaines River quite a good deal. I had control of three-quarters of a mile of it, from this bridge of Smith’s ujd to the next neighbor’s farm above me, and the river runs nretty near in a southwesterly course from my lands, and next it a little longer, I guess. I have 1336 been over it hundreds and hundreds of times, thousands and thousands of times from myj)lace to Joliet, down to Morris and all along the line. Of course when I go to Morris, I go out of the Desplaines River latitude. I don’t know a great deal about the Desplaines River above Joliet. I drove cattle to Chicago forty-five or fifty years ago this last fall, before the Alton railroad or the Rock Island railroad was built. I forded the river above Joliet and Lockport and through that country. Aside from the occasional fords, I have not been on the river to amount to any- thing. I was not so much acquainted around Lockport, but from Joliet down to the mouth of the Illinois River, I was well ac- quainted with it. I forded there above Lockport, but I was 1337 not up there all the time. The testimony I have given in my examination in chief refers to the river below Joliet to the mouth. . I would know more about that than I did further up. I was not so much acquainted, being a young fellow at that time. 516 Of course my business would not call me up there. My only experience with the Desplaines Eiver between Joliet and its mouth has been that I have crossed it occasionally with cattle at the fords, and crossed with boats and other ways. I know right below my house, where there is a kind of a little lake from Mill’s Island down to this bridge of Smith’s, I went out there and took a 1338 rope and sounded it down there, and we got 14 feet of water in one spot. That was right opposite my land up above the house, and then you go down 80 rods and you could walk it with good high boots. AVe used^to go in a boat at night and catch a lot of fish, at the places where we found the depth of the water varied a good deal, some places a foot and a half and some places six feet. I can’t say that I know how deep the water has got to be, in order to get navigation for commercial purposes. I know it depends a little on the size of your vessel, and how you load it. It has to be 6 or 7 feet on the Mississippi Eiver. I shipped down there to St. Louis and Memphis and Cairo. It is my opinion that in order for the stream to be navigable for commercial purposes, the water must be 6 or 7 feet deep. I am not giving this as an 1339 authority, because I am not an expert on it. I was basing my answers as to the navigability of the Desplaines on what was asked me. I was asked if I saw a boat carrying anything, and I said I did not and nobody else did round that country. They commenced using the canal in 1848. Between the date of my birth and that time, I was digging around trying to make a living the best I could. I drove the first repair boat on the Illinois and Michigan Canal down below Channahon. There was a slide sloping off to the river. They had a lot of stone right down across the river. They kept sloping it down and have repaired it for years, but I guess they have got it solid now. Trees are growing through it. 1340 My father did not spend much time farming. I ran a few months on the repair boats, and drove team. My father was boss on there, but as soon as I got a little bit bigger he put me on the farm and I run the farm. He went down on the Iron ^Mountain Eailroad. He built twenty miles of that through 8t. Louis. The first railroad built through this country was the Alton. I guess it was built along in ’58 or ’60. I drove oxen for a fellow through Hampton, below El wood, over the land where they put the railroad through. I didn’t do any work on the Illinois and Michigan Canal before 1840. I ran errands for the boys before the canal was finished. I did not in 1840, I was only three years old then. I commenced that .sort of work when the canal started 1341 up the second time, I think about 1843. They shut the canal down once. I used to run errands when they were working in the quarry. They would send me over to Channahon for to- bacco or some other thing, and I used to wade the river. I was about seven or eight years old at that time. I commenced to work on the canal under my father about 1850, I guess. The canal was running at that time. It commenced to run in 1848. It was in operation at the time I was working on it. I know they used 1342 to ford the river and haul stones across to the Channahon locks, and from the DuPage River, haul them to the Aux Sable locks. They built those locks out of stone. The stone was taken down by horses, I guess a team, hauled down by wagons. A part of the stone in the Aux Sable locks came from Smith’s. I know practically where it all came from. The biggest end 1343 of the stone came out there at the aqueduct and was hauled from some place down there. All kinds of stone, one ledge that was 4 feet thick and some that was lighter. It is not a fact that the locks at Aux Sable and the aqueduct, are built from sand- stone taken from quarries near Aux Sable, and if it was, it was built from sandstone that came out of a little ridge at Solomon Creek. That is the only sandstone works around there that I know of, but those Aux Sable locks had to be torn down, and they brought stone from Joliet and rebuilt them, not a great many years ago. I said that none of the stone used in these various im- provements down there at Aux Sable, or at any other point be- low Joliet, came from the Joliet quarries. I know that because the Joliet stone is a different kind of stone from what they used- there. I have been right there when they were building the locks and saw the stone hauled. I was about 5 or 6 years of age 1334 at the time this stone was taken down. You could notice the stone for forty years afterwards. The stone showed for itself. I base my knowledge that they did not use any stone from the Joliet quarries there, upon the fact that the stone is not of 518 Alexander , — Cross-Exam. — Continued. the same character as the stone that comes from the Joliet quar- ries, and upon my experience. I have been along there when they were doing all this work when I was a ^‘kid.’’ Prairie .1343 Creek is right up the Kankakee Eiver towards Wilmington in a southeasterly course. I did not say that part of the stone used in improvements at Aux Sable come from there. There might have been a few stones put in the aqueduct, I mean the aqueduct at Dresden Heights ; the abutments are there yet I guess. Of the rapids in the Desplaines Kiver between Joliet and the mouth, there is one at Brandon’s Bridge, one at Treat’s Island, one where the DuPage enters into the Desplaines. The one at Whitmore’s farm and the mouth is all together where the DuPage runs into the Desplaines. There is a good strong river at the mouth of the Desplaines. There are five rapids between 1346 Joliet and the mouth of the Desplaines River. Sometimes the water in those rapids is deeper than at others. Some- times if you had a good pair of boots, you could ford it without getting your feet wet. That would be in July, August and Sep- tember may be. Three months it would be so shallow that you could wade across it with your boots on, a little more than a foot. There would be spots in there maybe a foot and a half deep. The current always drifted to the south side of the river, that was 1347 the deepest chanel. I should think there in the deepest part of it, at all times of the year, there was as much as 18 inches of water in the channel at that rapids opposite my place. I think the channel would be pretty near 40 feet wide there. The north side of the river sloped off, it is smoother, goes out gradually. At the lowest stage of water, at the rapids at my place, on my side of the river, there was a channel about 40 feet wide, with an average depth of 18 inches, somewhere along about that. Down at 1348 Whitmore’s Bridge, it was a little deeper than at my place, 2 or 3 feet, or 2h As near as I can guess, in the channel it would be that deep. At Whitmore’s the channel would be all of forty feet, 1 got the feed from the DuPage River there. At every one of the rapids mentioned, with the exception of Treat’s Island, there was a channel of a width of about 40 feet, with as much as 18 inches of water all the way across it at the lowest stage of water in the Desplaines River. I think that is about right. Treat’s Island with reference .to 1113 ^ place, is about a mile and a half or two miles northeast. At Treat’s Island I i^eneralh^ went on hoi-se back when I forded it. I waded it a few times. It might vaiy 1349 as much as a foot and a half in the deepest part of it. I think there was a foot of water there. I don’t know as I can tell you if there would be a j)eriod of six or eight months of the year in which the water on all of these rapids, would l>e over two feet in the channel. I did not keep track of it, but some seasons it kept a good deal lower than at others. It depends on the weather. I think there was alwa^^s 18 inches of water in 1350 all of these rapids, excepting at Treat’s Island, — for a short distance of course. This depth of water of 18 inches on all of these rapids, for a distance of 40 feet in the channel, at the lowest stage of water of the Desplaines Eiver, existed prior to and after 1848. At Treat’s Island there at the foot, I should sa^^ the length of the rapids up and down the river, was about 40 rods. At the upper end of the island, there were two branches. IVe crossed one branch and got over to the island, and crossed the other branch and got over to the other side. The rapids came out on each side of the island. There was a channel on both sides of the 1351 island, and there was not much difference in depth. On the south branch the water would be as deop,a.s 2 feet for four or five months of the year, this before 1848, but I guess the north branch would not go that depth. The channel in the south branch would be 40 feet. I think prior to 1848, there was a channel in the south branch of the rapids at Treat’s Island 40 feet wide, and con- taining as much as 2 feet of water for a period of five months 1352 in the 3 -ear. There are places there in the Desplaines between Joliet and its mouth, where it was not deep enough to run much of a boat ; they had to get along there with a light boat. The water was deeper at all places between Joliet and the mouth of the river, than it was at the rapids I have mentioned, a little kind of locks formed. It was wider and deeper. Brandon’s dam that I spoke of was outside of the mouth of the Desplaines Eiver, I think six rods may be. That was put in there a long while ago. I think it was put in after the Illinois & Mich- igan Canal was built. L ain’t going to swear to that, one way 520 Alexander, — Cross-Exam. — Continued. or the other. I think the canal had been in operation before 1353 Brandon’s dam was built. Anyway it was built about the same time. The next dam that I mentioned was at Treat’s Island. There was a little dam put across the north branch. Had a race to run the water down to run the saw mills. It was only a temporary fixing across the south channel. They put a good dam across the north branch. I don’t think that was built after Brandon’s dam was built, as long as I can recollect. Mr. Treat l)uilt it. The next dam up the river, I thing Malcolm run this across, — the mill below McDonough street. I don’t know when that was built. They had a wheat mill there and had wheat ground, when I was quite a chunk of a boy. If it was built after the Illinois and Michigan Canal, it was quick after it. I know I took grist there when I was about ten years old, and I am now about seventy. I don’t know how long it had been built 1354 then. Malcolm run it. According to my memory, the next dam up the river, was right here at Joliet. I don’t know when that was built. I know they had it built before the canal was in operation, because they had to have a feeder to have this water come down here. I think it must have been built about the time that canal was, because the canal crossed the river and comes over on the other side. I suppose it was built for the purpose of supplying the canal with water and power. Norden & Company built this dam here where the electric power is now. I don’t know what year that was built in. I think it was built after the canal was in operation. I am not positive about it, but my opinion is it was. It was my father ship])ed the grain. He hauled it up with yoke teams somewhere in the 40 ’s, about ’48 or ’50, some- where in there. I don’t know that it was after the canal wms in operation. They run grain up the canal pretty quick after they got it open. When I came to operating the farm, I usually shii^ped grain to Chicago by railroad mostly. I fed most of the grain I raised for many years and then bought a good deal. I never saw boats pass over the Desplaines Kiver prior to 1848. I know ever since I wms big enough and got along the river hunting ducks and the like of that, there was no boats running in my time 135b after I got big enough to get out. I guess I wouldn’t re- member what occurred on the river from 1837 up till 1845. I don’t know that no boats ever did go down the Desplaines River carrying feed prior to 1848. I know enough old settlers around there and could get information about the matter, and as an individual I could see them going down. But they did not go down, and you can’t produce a man in this state that ever saw 1357 one go; that is my opinion. I don’t remember as I ever saw a fence across the l)es])laines River. The fences ex- tended dowm into the river a piece, and did not lain ])arallel with it. They did not run all that way across it. Wherever 1358 the water was any depth among the riffles, they had fences along the river bank, I mean parallel with the river. At Glidden’s on that farm where Mills is now, they had a piece on the south side of the river that had a fence all along so the stock could not go across. That wuis to prevent stock wading and crossing the river and getting into the crops of the other farmers there. Re-direct Examination. The locks at Channahon were rebuilt somewhere about 12 or 15 years ago I should judge, and the locks at Aux Sable were also rebuilt about 10 or 15 years ago. At the time these locks were rebuilt, Joliet stone were used. They brought them down a 1359 canal. When I testified that the locks wmre built from stone taken of Section 21, I referred to the original construc- tion before the canal started at all. I have taken a boat up the channels that I spoke of where the rapids were. Sometimes I would row it up, but most of the time I would push it up when we were fishing nights, go out and push them right along ahead of us. The boats that were taken up those rapids were taken up that way most of the time, unless it was low or when the cur- rent was very strong. I have been up through the rapids at Treat’s Island. I have rowed a boat up through there after I got over the wmrst patch. There is a little ])iece in that lock very swift for a while and then they ease up a while, but after we got to the bend of the island there was forty rods over there that was real swift. A¥e pushed the boat up part of the way and 1J60 rowed it up the remainder of the way. We did not go there a great deal to fish. We would go where it was full, and if so, we would get all we wanted. It would be one trip up and back. 522 Where these channels were in the rapids, there were these nigger- head stones all along in different places. I nsed to pick them np and carry them to the place where I forded. We used to pick them up and fill them pretty well up, so we would have to clear that out once or twice a year. Down at our place it was not quite possible to step from stone to stone without getting the feet wet. There was space where there was a big channel you could not quite step over. At these various channels where there were rapids, I saw it, a good sized stone would he sticking up out of the wmter and some sticking up and some under. I did not mean at these rapids there were channels forty feet wide that were en- tirely clear from stones, so that boats could go up and down 1 361 without hindrance. Could not go up there, stones all the way, a tough match to get a skiff up. Q. These channels were filled with stones, some sticking out of the water and some under it, so it would be impossible to nav- igate it; isn’t that true! (Objected to by counsel for complainant as leading.) A. Yes, sir, that is true. Hearing adjourned until January 16, 1908, at 2 o’clock p. m. Stephen J. Williams, a witness on behalf of the defendant, testified as follows: Direct Examina ti o n . Counsel for Complainant. I object to the taking of the testi- mony of this witness because we have not been served with notice of the taking of the deposition. Euling on said objection by trial court. Counsel for Defendant. It was afterwards stipulated that we neither of us need to give the names of the witnesses in our notice. Objection overruled. (Said ruling on said objection occurs on Trans, p. 4031.) 1362 Direct Examination . My name is Stephen J. AVilliams. I reside right opposite Eomeo in the Township of DuPage. Eomeo is the next station above Lockport on the Desplaines Eiver. If I live until next Sep- tember, I have Jived there about 63 years, I think. I am going on 63-64 years. I was born in that same place. My father lived there before me. He was one of the contractors on the Illi- nois and Michigan Canal a long while ago in ^36. He lived there long years, I don’t know how many, I think 53. He lived there until he died. I think I heard him say he moved there in ’34. My business is farming and raising horses and cattle. I have about six or seven hundred acres. I think Romeo is about three miles from Lockport,' about seven miles from Joliet. I am not familiar with the Desplaines down to its mouth from my home. I am familiar wdth it right around in our country there. I never went very much south down that way. My business did not call me that way, but from Lockport up I know all about the Desplaines River. I am not familiar with the Desplaines River any further than Joliet. I never went down that way. I went down to Channahon to buy a few cattle, never paid any attention to the river. My going back to the early days when I was a youiiii: boy, there were no stones in the river in our country. I don’t know anything about the dams, only about the river up in our country. To my knowledge the river up in our country has never been navigated by boats carrying freight or passengers, never to my knowledge. I do not know of any navigation of the river up above Lockport for commercial purposes. My home was right on the bank of the river. The cattle used to run back and forth across there all the time. I never heard of any boats going up and down the river at any time with passengers or freight. 1365 Q. From your familiarity with the river above Lockport, I wdll ask you if it wmuld be possible for boats carrying freight or passengers to be navigated up or down that river during ordi- nary seasons of the year? (Objected to by counsel for complainant as calling for the opinion of a witness.) A. I don’t see how a boat could come up that river. It wasn’t deep enough. The biggest boat that I ever saw on the river in my life is, sometimes we used to get a boat to row around and spear some fish; two or three of the hired men used to go down there and spear fish there; that is the only kind of boat I ever saw on the river. 524 S. J. Williams, — Direct Exam.— Continued. Q. Were there any rapids in the river above Lockport that you are familiar with! A. No, I am familiar with the whole river from Lockport up, hut there was never no place the water wasn’t dee23 enough. The Witness. There were fords in the river above Lockport. We used to cross at Romeo and there is a ford there yet. You could ford any place there. The water was not deep. Some 1366 parts of the summer you could walk across without wetting your shoes; in the spring it is dee^ier during the flood sea- son, but since they turned the water the other way by digging this canal, the Sanitary District canal — it has made the river a little deeper, but then we cross all the same. Before the time the Sanitary Canal was built, it was a good deal shallower than it is now. Lots of riffles we could cross up above Lockport during the summer season without getting our feet wet. Q. You don’t think it would be possible during that season of the year to run boats up and down! (Objected to by counsel for complainant as being argu- mentative.) A. AYell, in the summer time, you couldn’t get a jilank down there. The Witness. It was a pretty good current there when it run. I don’t know of any dams in the river above Lockport or at Lockport. 1366 Q. Did you know of the Daggett mill at LoclqDort! (Objected to by counsel for conq^lainant as suggestive and savoring of cross-examination.) 1367 A. Why, certainly. We used to take our flour down there ; take our wheat down there to get it ground. It was that mill then. Dr. John F. Daggett. They had water power there. The water that they used there to run that mill looked to me as if it was always coming out of the canal from Norton’s mill. The water from the mill that he had in Lockport, right down there, and they had a race. That is the way it looked to me, although I never took much pains to look that over. I do not believe there was ever a fence across. Desplaines Kiver, above Lockport, within my recollection, but it seems to me that Mr. Alderman ])ut a fence across there once, but I would not be positive. We were going to put a fence across there. (Objection by counsel for complainant, to the witness stat- ing what they were going to do.) 1368 The Witness. You see, in the spring of the year when the water raised there for a while, it would take the fence away; that is, the ice would take the posts away. We could noi put any posts there because it is all rock bottom, unless you would drin a hole down in the stone, and we thought we had better not put a fence there, because when the river broke up in the spring, the ice would lodge on the posts and destroy the fence. This fence that may have been built by Mr. Alderman was not a bit further than my land runs. There is a jog there in the section, and Alderman owns east of me on the north. It was just above mj place, only the fence between me and him; only you know his land protruded further east than mine. I could not state positively whether fences on my own land, or on my neighbor’s land, or on any farms above that ran down to the river, were built at right angles to the river and ran on down to the river into the water. The wires were stretched across the river. 1369 The fences were put there before the Sanitary District built that ditch there; that is what I think, I would not be positive, but it seems to me that that was the case. There is no fence there now. There is a bridge across the river running to Romeo. We had to drive across the river last year and had lo ford the river with the grain and everything. I do not remember any bridges across the river there, or elsewhere, above Lockport, dating forty or fifty years back; no bridges at all. I recollect only one bridge in that vicinity and that was the Illinois and Michigan Canal bridge at Romeo. When I was a boy ten or twelve years of age, produce was shipped from the farm to Chicago by boats on the canal. The first railroad was the Chicago & Alton. That was built a good while after that. I cannot tell exactly when it was built. 526 1370 Before the railroad was built and after the canal was in operation, we traveled between Chicago to Joliet on packets on the canal. There were two lines of packet boats runninp*. back and forth: one line they called the ‘^Eed Bird’’ and the other the Green Bird” line of packets. Cross-Examination. I was born in 1846, on the 22nd day of September, right on the same place where I live to-day; across from Borneo, in the Township of DuPage, right across the line from the Lockport line, which separates that town from BuPage Township, within 80 rods of where I live,— all in Will County. By ocupation I have been a farmer, stock raiser, and dealer. 1371 That is what I have always done. My home is about 200 rods from the Desplaines Biver in Section 34. I do not know any of the gentlemen interested in the Economy Light & Power Company. I said that in certain seasons the water in the Desplaines Biver was very low, so that in places where the riffles are you can step from one cobble stone to another and across, without getting wet. That is just right. In other seasons of the year, it was pretty deep, speaking of the water on these 1372 riffles. Take it along about the time of the breaking up of the ice, the latter part of March, it might be for a couple of weeks shallower, and then other times a good deal higher, but it would soon go down ; it would not last long. On those riffles for a while after that it would be up to the horses’ knees, may be a little bit higher. By that I mean one and one-half feet, or two feet, along there, about that, on the riffles. It was lowest along in the fall, July, August and September. would not be very deep on the riffles in the winter, or when the ice was formed, a couple of feet. I think, if I recollect, the 1373 riffles were ordinarily the shallowest places. The way it was, the shallowest places would be supposed to be right here (in- dicating), there would be a place, probably reaching so (indicai- ing) that would be deeper, and then would come up again and go to low water again and be another hole in there in the river. Where the riffles were was the lowest sheet of water. The other ])art, where the riffles were not did not amount to so much. It was in holes. We used to, when I was young, take the horses down there and wade them in the deepest places and wash them off, and I know some of the holes used to come up to the horses ’ 1374 sides. That would he four or five feet deep. I do not know the river below Joliet. I never saw boats on the river up there; I mean boats that would carry merchandise or passengers. I mean boats that people would want to take, the lumber from Chicago. I have seen lots of boats that would hold a couple of men around there that would be fishing, but I never saw any boats bigger than that. They were fishing around the holes. They would take their 1375 fishing hooks and sit there and fish. I saw that a good deal. We waded in when I was a boy. The hired man went down there. They had gotten hold of what they called a jack and had it filled with some kind of bark and lit it and I went along and carried the fish. Every one of them* waded along the river and speared fish, and we stayed there until 12 or 1 o’clock at night. Q. How deep water is necessary in your judgment for naviga- tion for commercial purposes? A. Now, sir, I just give up that job. I know mighty well that it would not carry much of a ship up there. I think an ocean liner 'would have no use there at all. I think Evans would have no use up there. Suppose a boat was 30 feet long and 10 feet wide, carrying 1376 five tons of freight, — I have not got the least idea in my mind how much water it would take to float that kind of a boat ; I do not know how much it would require ; that is not in my business. As to how far back my memory serves me, I recollect the day my father went to California, in 1850. I was born in 1846 and was four years old them. I would not recollect about boats passing up and down the river at that age, but I recollect the packets be- cause they used to blow the horn for Jim Templeton to open 1377 the locks. The packets ran on the canal as long ago as I can recollect. I do not know when the old canal was finished and ready for operation. I think there is more water now than there used to be. I refer to the water thrown in from the Drain- age Canal. It is confined to the west more, it used to be spread more. The river used to be wider than it is now; that is in the 528 S. J. Williams, — Cross-Exam. — Contimied. spring, when the freshets would come, it used to be wider. Now it is in the regular channel. There is an island right where I live and the river spreads, and goes to each side of this island, and the main river there, after it -goes past the island, I should think it must be 150 feet. 1378 I do not think it is 350 feet wide. I know the Drainage Canal in the rock region, up here in Lockport. The channel there, I think it is 100 feet wide. I think the river was about one and one-half times as big as that; and if it turned out that the Drainage Canal is 160 feet wide, and the river was a half wider, that would make it 240 feet. I never measured it. I am just speaking of what it seems to me. Years ago, before the canal was dug there, to the north of me, it was a good deal wider. It was spread over more territory, because the river used to spread toward the east, and this water came down there. I think now is just about the way it used to be. They dug the channel along there and the drainage bed is right in the middle of the river, to keep it from spreading. I think at this time that since the Sanitary District has put in the Drainage Channel, and throws the water in the Desplaines River, the river now is about the same width as it used to be in the early days. 1379 I do not think that the amount of water is the same. I think it is a little deeper now. I would think it was probably 8 or 10 inches. I said in the first instance that I knew of no fences across the river. I think that there was one fence in there. I am not quite clear about that, I would not be positive. My father had a fence right alongside the river, running parallel with the river, I should judge two rods or so from the river. It might 1380 have been a little bit more. That is the only fence I have any distinct recollection about. That did not cross the river. I am not at all sure of any fences crossing the river. I know about other people have fences within two or three or four rods away from the river, running along with the river. I know of other fences that were two or three or four rods or more away from the river. The fences would run for a number of yards in a straight line and then the direction would change a little for several rods again, in a sort of meandering way along the edge of the river. 529 None of them pretended to follow the water line, just followed as near the river as they dared to go. My father’s fence I 1381 think was built about war time, along about 1861. That is the only fence that was there, and Chris. Corrals adjoined our land. He built a fence. Those are the only ones I know of. It might be there was one above that, but I am not certain. 1381 That was the state of affairs about 1860 or 1861. The fences got dilapidated when the ice formed and took away the posts and wires, and we had to stop it. I am talking of the fences that ran along the river the same way the river runs; that ran lengthwise with the river on the bank. The two fences that I have mentioned are the only ones that I have any recollection of. I never knew of any more, at that time. Re-di red Exa m in at ion. 1382 Those fences were built along the river to keep our cattle in pasture; otherwise they would have strayed away and got on the land of somebody else across the river. These riffles that I talked about in the river above Lockport, I did not -say that in them the water during the low season, or when it was at its lowest, would run over one foot to two foot in depth. The lowest in some places you could walk across in your slippers without wetting your feet. That was along in the fall there. I do not know as I could tell how it would average 1383 during the entire summer, after April to September. Some times the water was not in any place except in those holes. You could look between the stones and see the water running down. That would not be the condition of things during the entire summer. Sometimes both channels would be running. There are two channels there ; one on the east and one on the west. These two would run some of the time, and there would be eight or ten inches of water in them, and after awhile they would dry up. There would be more than eight or ten inches of water in the shallow places, sometimes in May. In July, August and Septem- ber it was dry time, but sometimes there used to come up a big thunder shower up north where there would be more water come down just for a short time. It only lasted two or three days. 1384 After that it would come down to the old thing. When the water was high, you could not see any rocks there. There was 530 one rock right near the bridge. When this high water came on, I could not see that rock. I watched that rock, and could see the water come down along the side of it. There are not so many big - rocks there. There is once in a while a big boulder, but there are only a few boulders. William S. Myees, 1385 a witness for defendant, testified as follows : Direct Examination. My name is William S. Myers. I live in Lockport. Have lived there since the 18th day of May, 1841. Was born October 29th, 1815. Mlien I came to Lockport I clerked for a Mr. Norton, before I went into the mercantile business myself, in 1843, and went out in 1859. Since then I have been dealing in real estate, somewhat. I live right near the city of Lockport. Have lived there since 1841. Was in St. Louis about four years in business for my brother-in-law. The Hesplaines Eiver runs at or near the outskirts of Lockport. I have seen the Hesplaines Eiver very 1386 frequently. Never swam across it. Have never been on the river in boats. Have seen nothing bigger than little row boats there. Never saw any freight boats, or boats carrying passengers. To my knowledge, no boats used for commerce ever ran up and down that river. Never heard of any boats used in commerce running up and down the river. Never heard of anybody navigat- ing the river down to the mouth from Lockport. In 1841 people got into Lockport from Chicago by four-horse stage. That was the only public conveyance until the canal was finished. I do not know the name of the stage line. It did not have any special name. Produce was brought from Chicago by wagons and sleighs. If produce went from Lockport to Chicago, it went by wagons and sleighs. 1387 I am not familiar with the different shallows and riffles in the river. There was a dam in the river there at the mills, and Mr. Nor- ton, for whom I clerked, had a mill there at that time. There was no provision in the dam for boats to go up and down. I do not know when the dam was built. Mr. Norton had been there some years before I came. Shortly after I came to Lockport, merchan- 531 dise was brought from St. Louis up to Ottawa by water and hauled from Ottawa to Lockport by wagons. The first merchandise I bought, I sent to St. Louis for. Went down to Ottawa in two-horse wagon, took the steamboat at Ottawa, bought all the goods I wanted in St. Louis, got it shipped on the steamboat and came back to Ottawa and from there to Lockport they were hauled by wagon. That was the method that all dealers in Lockport used to 1388 get their goods from St. Louis. The only method that I know of. That was in the spring of 1843. I do not remember any dam in the river in 1841 besides the Norton dam at Lockport. There might have been some in Joliet, but I do not know anything about them. There was a bridge across the river from Lockport over to the bluff on the other side; that was existing when I came there. Bridges have been built since then. The bridge that was there when I came did not have any provision for opening so that boats could pass 1389 through. I do not think any of the other bridges that have been built there since have any such provision in them. I think the bridges that are there now are high enough for an ordinary boat wuth an ordinary mast to it, to pass along. I do not think that any boats, except skiffs pass under it. There is only one bridge now in Lockport crossing the river. Cro ss-Exam inati o n . I have seen skiffs on the river there occasionally. My youngest son has a boat as big as I ever saw on the Desplaines at Lock- port. It is just an ordinary skiff. It was given to him by some parties that were working on the big drainage ditch, and it is in my barn now. I mean to say that I never saw any boats on the river. I do not think there ever was any. I cannot say that 1390 there never were any but I say I never heard of any or saw any. I never knew of a boat on the river propelled by sails or drawn along by ropes along the side of the river. George F. Gurney, 1391 a witness for defendant, testified as follows: Direct Examination. (Testimony of this witness was objected to by counsel for complainant on the ground that no notice had been given of his proposed examination.) 1 live in Joliet. Have lived there since ’94; before that I lived in the town of Jackson, in Will County. That is eleven and a half miles southeast of Joliet. It is seven or eight miles from the Desplaines River. I lived there over thirteen years ; came there in ’64 or 5. I lived in Wilton, a town southeast of that, before I went there; first came to Will County in 1392 1845. I am 75 years old. I lived in Florence a couple of years; it is a town southeast of Jackson; there isn’t much difference in its distance from the Desplaines River. I have lived continuously in Will County since 1845, excepting a short time, six months or less, when I lived in Grundy County, on the Mazon. My business has been farming. I have a farm in Jackson and Wilton in Will County. I was thirteen years old when 4 1393 came to Will County. The farmers in Will County, in 1845, used to haul their products to market by wagon, to Chicago ; they got supplies in Chicago at that time. Some were brought here, to Joliet. M came to Will County in a boat from Butfalo to Chicago ; from Chicago to Will County by team. I think I have been more or less familiar with the Desplaines River running through Will County since I came. I never knew of boats com- ing down from Chicago with merchandise and produce and carry- ing passengers, along the Desplaines River. Never 1394 heard of such a thing; never heard of any commerce of any kind being conducted on the Desplaines River by boats, eitlier in high or low water. I came from Chicago to Will County in March. I think I know whether it was possible at that time to come down the Desplaines River by boat. The fact is, you couldn’t; no way of getting over the dam. There was a dam here in Joliet, and the rifiles up from Romeo would break any boat. I know of other riffles in the river right below Joliet closer than Treat’s Island. There were riffles below that clear 1395 down to Channahon; what you call Channahon bridge. They might call it Smith’s bridge now; that is the only bridge south of there; below that there were not any riffles or shoals in the river; there was considerable rather dead water there. When I first came here to Will County, there was a little dam here in Joliet north of the Jackson street bridge. Below Joliet there was a dam at Malcolm’s mills and at Treat’s; there was a little dam there; they had a kind of saw mill. I do not know whether there was another dam in the river below that; there was a bii-nd of a dam near the mouth of the river there, but I do not know whether it was recognized as a dam or not. In those dams that I know of, there was not any provision made for locks so that boats could go through them back and forth; not in 1396 any of them. I think there was a dam at Lockport when I came to Will County; I do not know to what extent; I saw it, but of course had no particular object to remember it. The bridge at Lockport was the only bridge, when I first came to Will County. There was some timbers laid across there at Jef- ferson street in Joliet. There was no provision in the Lockport bridge for turning the bridge so that boats could go through. I had occasion to cross the river hundreds of times during my early life. I forded it at Treat’s Island, and below Joliet, and at Smith’s bridge, as you call it. Those fords were at riffles in the river; very little water there in the summer time. 1397 You could not walk across it without getting your boots wet. I could go across without getting my feet wet, but I would get my shoes wet; go from one stone to another. I have hauled produce to the Chicago market from Will County, two or three times; three times at the outside; that was before the Illinois and Michigan Canal began operations; between 1845 and 1848. The roads were not good. When a man with a load got in a rut, he stayed there; it was difficult transportation. I hauled produce back from Chicago every way. 1398 I recollect Haven’s mill in Joliet. McKay built the mill on the side of the dam near Jefferson street. The Malcolm mill is where the Haven is. I worked for Haven’s at this mill on the logs. The logs were hauled to the mill from anywhere. Never heard of floating logs down the Desplaines Eiver to that mill. They would run the water off in the spring; in the fall they had plenty of water to run. In the summer they had to 534 run the water off, and then start up again. There was enough water to run the mill only at periods in summer; they would shut down, probably every year, for lack of water. 1399 I ought to be familiar with the old aqueduct that was built across the river down near its mouth, because I hauled their lumber there. I do not know that I could place the year; I think about ’46 or ’47 ; I hauled lumber there at the time it was be- ing constructed. My recollection is that the stone to build the abutments for that aqueduct was hauled there from Alexander’s quarry. I never hauled any for that aqueduct, but they had pretty tine stone, and that is my impression. When I speak of Alexander’s quarry, I mean the quarry on the land that is now owned by Mr. George Alexander; his father owned it; it was probably 50 or 60 rods from the Smith’s bridge. That bridge was at a point probably about a mile and a half below Treat’s 1400 Island. I helped haul stone from Alexander’s quarry to the aque duct at All Sable. I think some of the stone was used on the aque- duct where the Kankakee feeder is ; probably not all of it. They had a quarry there below, but I was never down there to examine it, because I had no occasion to. Some said it was good stone; some said it was not. There was a quarry below on the Illinois Eiver, just above the mouth of the Desplaines. I never heard of any stone coming down the river by boats for the aqueduct on the Desplaines or An Sable. From my knowledge of the river it might have been possible to have brought stone from Joliet down to those aqueducts. Sometimes they could have floated a little stone now and then. I do not know where they could, from any place in Joliet, get them to the river; they could not get them through Haven’s dam, or the other dam in Treat’s Island. With high water they might have floated over, but they could not 1401 get it in. I do not recall ever seeing any fence across the river below Joliet; there were fences along the river; there were fenced pastures the Smiths made. Folks made fences down into the river where the stock could not go around in deep water. They built the fences into the water a little distance, so the stock could not get around. Sometimes, but not very often, it was pretty safe to put them in there and keep them in there. The distance the fence would be built into the winter depends upon the condi- tion of the ground, and the depth of the water. 1402 Cross-Examination. In building these fences into the river they would go as far as where they would have to hold up their heads, 2 or 3 and some- times 3 and 4 feet of water. Sometimes they would be right close to the edge of the water, 6 or 10 or 15 feet out, sometimes 20, sometimes more. The quarry I was speaking of above the conjunction of the Desplaines and IluPage Eivers was above where the aqueduct is built. It is right near the conjunc- 1403 tion of the Kankakee and Desplaines Rivers. Sometimes one could cross the Desplaines River at the riffles with shoes without getting their feet wet by stepping from stone to stone, I could not tell you what portions of the seasons. Sometimes we would have a long dry spell and then it would be a good long spell you could do it. That place I am speaking about now, the station of the Santa Fe road is right opposite. It is above Treat’s Island. Occasionally could do it here in Joliet. In high water there might be 7 or 8 feet, sometimes 5 to 10 feet. It would 1404 not be much wider than the river is now, but it was on the flat lands. It is a quarter of a mile wide, probably, some- times; on the lowlands the river would flow out at times; there would be a depth maybe of a foot or 6 inches, maybe 2 or 3 feet. The channel where the depth was 5 to 10 feet during certain seasons of the year I think would be 200 feet probably, maybe 1405 not; I cannot flx it well. I would not think the bridge at Channahon’s is 300 feet wide, barely possible it is 200. Could not tell you how deep water would be required to float a boat say 30 feet long by 10 feet wide, 3 to 5 feet probably, I don’t know. Take it on these riffles where it is rock, there would not be anything to cover those rocks and if a boat struck the 1406 rocks she wmuld be there sure. Aside from the rocks, if there were no rocks to interfere I think from 3 to 5 feet of water would carry a boat such as I have described. I do not know anything about their having carried freight from Chicago or from the portage near Chicago on the Desplaines River down the Desplaines River and around to Kankakee on the Kankakee 536 Gurney, — Cross-Exam. — Continued. Kiver. I have lived on the Kankakee Eiver and the Desplaines from ’52 or ’53; I lived right close to the Kankakee at Wilming- ton; that is below Kankakee City; they call it something like 1407 25 miles. I lived there two different times, the first time from fall to spring, the second time probably a year. Dur- ing the first time I lived there sometimes it was frozen and some- times it was not. They used to ford the Kankakee with teams at Wilmington. I think I forded there and it was four feet deep. I could not tell you the depth. Sometimes it would be bare rock and then you would go into a hole, maybe a foot or two of water, while other places would be dry. I think it was ’46 that I hauled stone to the aqueduct across Au Sable Creek. There might have been a saloon a quarter of mile or 1408 less from the river on Au Sable Creek; I don’t know whether there was. There was two gangs of men working on the canal, one they called ‘ffar-downs” and the other ^‘Tipperary’s.” When they got together I saw them get to fighting. That hap- pened frequently when tliej^ got whiskey. They would come to Joliet and get it. Au Sable Creek may be 20 miles or more from Joliet. I am sure that there were not some stone taken down from somewhere there in a boat ; I am sure there was not because they could not get them. There was no place to load it on. There was a stone quarry below the dam in Joliet. There was no way of getting them across from the quarry, is the reason I think there was none taken. I know where the first riffle in the Desplaines Eiver was about the mouth; I can’t place the dis- 1410 tance. It would not be 2 miles there ; it might be half a mile, more or less. I could not tell you how deep the water was on that riffle in low water season. The second riffle above the mouth is at Alexander’s; my impression is it would be about 3 miles from the mouth. You could cross it stepping from one cobble- stone to another. In deep water probably there was 10 feet there. I remember one place the depth of the river above the mouth of the Desplaines and Kankakee, I would say it would be 15 feet, 1411 once in 1848. The depth of water on those two riffles I speak of was after the dam was put in here at Joliet. There is a third riffle above the mouth of the river before you get to Joliet, at Treat’s. I have seen the water run up the river there from 537 the Kankakee. I am speaking of one crossing place they call the cut-off. The water went through the Kankakee Kiver through the cut-off, then ran up the Desplaines, or hacked up, whatever way you wmnt to say it. It ran up the current pretty nearh^ as fast as I can run. That was quite a big body of water. 1412 I could not tell you how deep, a big volume ; I should say it would be as much as 10 feet, a big wave going right up, 2 or 3 feet of a wave. I say it run up 10 or 12 feet deep. All this was after the dam at Joliet was built. There would be an- other riffle down there at Brandon’s Bridge. It is about 2 miles down from the heart of Joliet, from Jefferson street. 1413 I have crossed that riffle hundreds of times; sometimes it struck my knees, sometimes it was a foot and a half deep. I did not stop to measure it. I got across; never swam a foot in my life; I have sat on my horse and let him go when he had to swim. I should think the riffle at Treat’s was a couple of miles up and 'down the river. The others were not so long. 1414 This one at Joliet was all the way from there down to Bran- don’s bridge from the Jefferson street bridge down. I esti- mated that at a couple of miles, more or less. I have crossed the places a number of times; sometimes I might have taken off my shoes and waded across. One place I speak of having crossed is right here below Haven’s mill. I could not tell how much water was there at that time; it was quite wide. Some places there would be considerable and some you could jump across, 1415 sometimes 2 feet probably, when I jiimped from stone to stone. I never thought anything particularly about dis- tances. I should think there is more water there since the water from the Sanitary channel has been put in. In my judgment, it has raised the water above what it was before about 3 feet. R e-di rect Examination. I said that I helped haul stone from Alexander’s quarry to the Aux Sable aqueduct; it is on the south side of the Des- 1416 plaines. The quarry was on a different side of the river from the aqueduct. We just dumped the* stone at the aque- duct. We loaded our wagons at the quarry, hauled the stone over to the aqueduct, had to cross the Desplaines, crossed it at 538 Chamialion’s ; there was no bridge in those days. We did not take it over in boats, drove our team and wagon right through the river. While we were hauling that stone across, the water would he up to the front wheel of the wagon ; that would be 1417 something over three feet, three and a half may be. During the summer months over these stretches I have mentioned there was barely no water. Sometimes we would have very severe storms in August and have very high water; that would last a week and then go down. In the spring under normal conditions anybody could go anywheres along these places, across in 1418 buggies or wagons. There have always been x^astures and fences there within my recollection. There was enough of a dam at Beard’s near the mouth of the river, to prevent boats coming up the river. A boat couldn’t get over it or couldn’t 1419 go around it. We had a flood there in ’60, but in ’48 was the time when there was a flood on account of the ice. This time in ’60 something, was in August. Sometimes those floods take a couple of days to run down. There was never a time along the river when the water was 4 or 5 feet deep continuously for two or three months except since the Drainage Channel has been built. Re-cross Examination, This dam that I sxoeak of at Treat’s was only on one branch of the river, the lower branch where the water ran, about in the middle of the stream; the water was swift on the other side of the channel; I don’t know how rapid, I never tried to run as fast or walk as fast; I never had any particular object to 1420 know how fast it would run. It was in the summer season in ’46 or ’47 I hauled stone down for the aqueduct at Au Sable, I could not remember what month; it was in low season of water when we could ford it. Re-re-direct Examination. I do not know as I could state the year the state built the dam in Joliet at 'Jefferson street; that was not built before T 3421 came to AVill County. There was a dam there when I first came to Joliet. I could not remember when the state built tlie dam at wliat is known as Jefferson street. It must have been ’48 or ’50, through there, before ’50. Xavier Munch, 1422 a witness for defendant, testified as follows: Direct Examination . My name is Xavier Munch. I live at North Hickory in Will County, near Joliet; came here in 1839; have lived here pretty much ever since, not all the time. I was out west about a year and a half, but other times I lived around here. My business is farming. I had a farm in Will County. I bought one in 1848 or something like that, and another in ’59. It will be two years in February that I sold the last one. During the time that 1423 I had them I cultivated the farms. I was born the last day of July, 1823. I came here first wdth my father on the canal. That was in 1859. M^e landed first at Lemont, then in the fall made up our minds it was a kind of a lonesome place, so we came to Joliet. M^e came to Lemont from Chicago, walked out afoot; came from Lemont to Joliet, drove down in a wagon. We used to have to go to Chicago; we could not sell produce 1424 here ; go with oxen or horses ; came back the same way ; never came back empty, always had a load, lumber, coal, hardware, salt and such. I have been considerably familiar with the Desplaines since I came to Joliet in 1839; we used to go fish- ing in the river. I have crossed the river a good many times since 1839; had occasion to go across frequently with teams. I was down in Peru twice after sugar and molasses in 1839 and 1425 ’40. At that you could not get any flour by the sack ; maybe go to the mill and buy a sack; otherwise folks would have to clean their wheat and take it up to the mill and get it ground. Mer- chandise dealers in Joliet got their supplies mostly from Chicago; all came by wagon; none came by boat that I know of; never heard of supplies being brought down from portage near Chicago by boat or Desplaines Eiver. I have seen some small boats, 4 or 5 men, and they would have supplies, guns and tents, to go hunt- ing; boats with paddles. I never saw boats plying up and down the Desplaines Eiver carrying passengers or freight; never 1426 heard it that I know of. I never knew of any boat that went up the river, but have seen some boats come down. They 540 Mun cli, — Di rect Exam . — C ontimied. would get to a dam, pull the boat out on land and bring it around and drag it along and put it in the water again — row boats with paddles. I did not follow them to the riffles. When I came down here there was a dam on Jefferson avenue, a temporary 1427 dam of wood. There was a grist mill; that was condemned by the state for making the canal. Down below about six miles there was a fellow had a saw-mill and a wooden dam, at Treat’s Island; that was clear across the north channel when they run the saw-mill. I do not remember any other dam be- low that. I do not remember a dam at the place we called Dres- den, when I came here in 1839; I passed through at different times hut I didn’t see a dam there. I could not possibly say whether there was any other dam above Joliet in the Des- 1428 plaines in 1839, but I believe there was one at Lockport, a temporary dam for a grist mill. There was another dam op- imsite the penitentiary just above Joliet that I know of. There was one at Jackson street after 1839; that was built, I guess, in 1840, built by the state for the canal; it was run clear across the river. There is a lock and dam above. The dam extends the full width of the river. On Jefferson street when they 1429 made the dam they built a lock in order for the boats t(* go through. The boats did not go up through the dam at Treat’s Island before 1848. I never saw any going up; never heard of any boats carrying freight and passengers going up and down the river. In 1839 there were dozens of places where you could get across the river, I mean in the spring of the year; you could ford it just below Jefferson street bridge; but the spring of the year if you had small boats you could get across. During the summer season, from the first of May until the first of October you could get across right above the Jackson street bridge, ex- cept during the high freshets ; we used to drive through the river there ; the water was possibly hardly knee deep, solid bottom, and through here on Jefferson street there is where the walking was most any time except in the spring when the water was very high. I crossed at Treat’s Island; it was pretty shallow at the time I went, it was in the fall of the year, 1842; I went across 1430 with a threshing machine. Could cross there at almost any time except during the s])ring floods. I crossed at Treat’s 541 Island different times with a team, dragged some logs down to the mill, the mill of a man named Treat who had a saw-mill. Took logs from Mount Flathead, that is, near Rock Run. There was some canal timber there and the man bought a lot of timber from Pres- cott; I don’t know whether he got it for himself. He hired me and my father, and we sawed the logs and hauled them out on the river and rafted them down to Treat’s mill; that must have been two ^ and a half miles from the mill. I never saw any fences 1431 across the river; I saw some of them part of the way out, fences in there where the cattle run, but not across the river. That was, I guess, before ’48. I had to do with the con- struction of the aqueduct at Au Sable Creek. 1 hauled timbers out there for Brandon for the aqueduct, 40-foot sticks. I do not re- member seeing stone being hauled for that aqueduct; it was in the winter time when 1 hauled the logs, hauled them from the Au Sable grove, along the Au Sable, mostly l)urr oak. I do not remem- ber the construction of the aqueduct at the Kankakee feeder, but I know where elohn Treat had a little place right across the Kan- kakee, because I -hauled a great deal of timber out of the Dresden timber for the canal and locks. I did not see any dam John Treat had there at that time. Part of the time between 1432 Lemont and Joliet, when I moved to Joliet there was a good road. There was a time you could hardly get along, whether you went on horseback or not. After I came here I went to Chicago by road. When we had any grain to sell we couldn’t sell it here and had to go to Chicago. I took oats to Chicago and sold them for 11 cents a bushel. There were no boats running. I don’t know that I would know if there were any boats running up the river to the portage near Chicago if there had been boats. I never examined it all together clear up to Chicago, but many times I drove up there. One time I went up to Chicago from Joliet with a load of wheat and had to follow a trail the same as a railroad; you could not get out. The other road was cut up so that you would break your wagon down if you would get out, and you would just have to follow one after another to Chicago, and you would see now and then a loaded wagon laid aside of the road and a dead ox or horse. I never saw any farmer tak- ing grain up to Chicago by boat before 1848; these hunting boats 542 are all I ever saw; they were Imnters, had guns and tents. Peo- ]:)le came from Chicago to Joliet either with ox team or horse and team. There was a stage; that was here when I came. I could not tell you the name of the line. The stage master was a big, heavy man, I can’t think of his name now; I guess he is not living. I could not tell you exactly how often that stage ran. I went up and drove four yoke of oxen to Ottawa with store goods 1434 from Chicago, and coming back I thought I would get in the stage and ride. I went to the stage hall, and he says ‘‘About 7 o’clock this evening they have one going out.” I says, “How much will you charge me to take me to Joliet?” He said, “$2.50.” Well, I had hired out to take these yoke of oxen down and I was only getting 50 cents a day; I only got $2.25, you see, and he wanted $2.50 to ride on the stage, and I went back to the shop and bought me a pound of crackers and paddled for home again o:^ foot. This stage line ran on down to Ottawa and Peru, through all those places. There was no other convenience for people wanting to go to Chicago from Ottawa. That was in about ’44 when I went down with my ox team. Cross-Examination. 1435 It must have been about 1844 that that man down the river who had the sawmill hired me and my father to tie up a lot of logs. We hauled them out on the river, on the ice, in order to fasten them together on the ice; then when the ice went away we ran the raft down to Treat’s mill. That was on the south corner of Mount Flathead. Pock Pun runs right into the river on the north side; I should judge it was about two miles or two and a half above Treat’s mill. We hauled the logs together and laid them side by side and fastened them together and made a raft. 1436 There must have been about 30 logs I guess. Some were 3 feet and some 3-1/2 feet thick. When we took the logs down, the water in the river might have been 7 or 8 feet deej). That was mostly in the fall and through the winter. When we had done with the farm we would go to the woods and haul wood and logs. We crossed the river at Brandon’s Bridge. Sometimes the water was about knee deep, and others I crossed it when I was 1437 ])retty near drowned. By knee deep I mean a foot and a half or 15 inches. It must have been 40 or 45 feet cicross. At the time I crossed with the rails I guess it must have l)een 100 .1438 feet wide. In high water it might have been 60 rods wide; in low water I don’t think it was over 40 or 45. I think the bridge there, Brandon’s Bridge, is 120 feet long; where I crossed the river it was not as wide as that bridge is long. I said the stage line went on down to Ottawa and Peru, I don’t know how far through. I went dowm to Peru, that is as far as I ever w^ent 1440 with a wagon; I could not tell you if it went to Peru. There was not any dam down there at Dresden Heights in the early days that I recollect. I hauled teams there in the early days; was in Channahon over a week; that must have l)een ’45. I boarded at Dresden and Morris. There might have been, but 1 paid no atten- tion to it, unless I was wondering whether tlie three rivers ran so closely together. I saw Beardstown and three large buildings, and so I was surprised that that fellow was across the river all alone by himself. I say I saw boats in Joliet going down the river at the old mill where they changed routes ; four or five young 1441 men in the boat. I saw some tents, trunks and boxes wdiere they had provisions, and guns. The boat must have been about 20 feet, maybe 22, from one end to the other, on top I guess in the middle about 4 feet wide. I don’t know how much water it would take to carry a boat 30 feet long and 10 feet wide, with five tons on it. I was fishing on the river down at Brandon’s Bridge, and when I got on the riffles I could hardly go with two in the 1442 boat. That was in the spring of the year, al)out April, ploughing time. The boats I said I saw came from Chi- cago they said; they w^ent down the river; I couldn’t tell you how far they went. I could tell you pretty near what year that was; that was in 1840. I saw where folks had made a fence on pastures; I never saw any fence across the river; saw the 1443 fences built down to the river, about 10 or 12 feet into the river. They built out far enough so the water would not give away, so that they would not have any wmter at all. Those were little pens out into the river for cattle to get water in the river in summer time. The place where I crossed the river near 1444 Brandon’s Bridge was about 40 rods down; I crossed about 100 feet above the bridge near Christmas time, crossed through the wmter. At that time the water was two feet and a half 544 deep. I crossed at Treat’s Island in threshing time, in September; took a threshing machine across. That was in 1842. They had threshing machines here in 1842; just a thresher and three men with a rake and fork to get the straw. It was on a wagon. 1445 We had a common wagon they were laid on and hauled it across that way. The water might have been 15 inches. That was about in September; August is most too early to thresh; I think it was in September. Re-direct Examination. Farmers crossed when they had occasion there at Treat’s Island; there was no bridge there. Dowm at Smith’s Bridge they hauled many a cord of wood off the timber, crossing the river there. That was used all summer for that purpose, any time you wanted to, at Treat’s Island and Brandon’s Bridge. Transportation less than twenty-five or thirty hundred I hauled across there. That point we put the logs in for the Treat’s mill, from that down to the middle is what is known as Lake Joliet; that is 1447 on the end of the lake. These people that had the boat pulled it out on the land to get it around the dam and put it back into the river; they could not get over the dam. They didn’t take the contents and packages out. There were three or four men, all had a hand in it; had to drag it only a few feet. That was the dam at Jefferson street. There was no dam down where the Haven dam is at that time. Philly Haven started the sawmill and he used stone out of the canal to make a dam. If you should show me that that dam was built in 1839 I would not believe it. I think Haven built his dam in 1840 and used stone that Mr. Beemer had taken out of the canal to make that dam; it was later than 1840. I worked in 1840 for Beemer on the canal and this must have been in 1841. I think I saw this boat in 1840. I was not in Joliet sooner than 1840. I never saw a dam above Joliet opposite the peni- 1449 tentiary. I said that at the crossing at the point now known as Brandon’s Bridge the river was about 45 feet wide in the summer time. I meant feet, not rods. 545 Re-cross Examination, I hauled this threshing machine across below Treat’s mill. The water was shallow. Go anywhere over there, there was no bridge, only to be looking for the nigger-heads, not to run against them. James Boyne, a witness for defendant, testified as follows: Direct Exa m ination. (Objection by counsel for complainant on the ground that no notice of the taking of deposition of said witness had been given.) My name is James Boyne; live in Joliet; have lived, there about 60 years. Was born the 2nd of August, 1835. I think I was 10 or 13 years old when I came here. I came from Cornwall, Upper Canada, by boat across Lake Michigan to Chicago and from Chi- cago down to Joliet. To Joliet we came by wagon or boat, I 1451 forget which. I came from Canada in 1834. I came to Joliet I think about ’34 or ’35, I can’t remember; my memory is bad. 1452 Q. 1844 or ’5! A. 1844 or ’5. I am 73 or 74 years old. I have lived here in Joliet about 60 years. My business since I lived here has been wood turning. I am familiar with the Des- plaines Eiver. I have been up as far as Chicago and down. I have been as far down as Treat’s Island. I came from Chicago to Joliet by wagon. There were not any boats plying the Desplainesi Eiver at that time that I know of. I did not hear of any boats carrying passengers or freight. The first two boats that came on the canal were the General Ply and the General Trenton. 1453 I never knew of a boat on the river except skiffs. The dams in the river when I came were Treat’s and Haven and the upper bridge here, Jackson street, and there was one at Lockport. I do not remember one being opposite the penitentiary. In the early days the dealers got their produce by wagons from Chi- 1454 cago. I do not remember any coming from St. Louis. It could not come down the river. I have been over the river thoroughly. I have waded across it for miles up and miles down. I have been up and down from Lockport, but the depth of river 546 there I don’t know anything about. I am familiar with it as far as Haven’s dam thoroughly, but I would not say I was familiar with it from there down to Treat’s. In the summer months it was very dry; at other times there was plenty of water; in the early ]^art of the year there was plenty of water, but there was a great deal of dry time. When I worked down at Haven’s dam, I worked there I think about eight years, the water used to be so low 1455 that I could not run, and then it would be so that it bothered us. There would be freshets during the summer months, when the water would be high; that would last along perhaj)s a week, a couple of weeks at a time. I considered the general con- dition of the river during the summer months from May 1st to October, with the exception of freshets, was low. I could wade across it below Jefferson street bridge. There was not a number of fords ; I do not remember the ford at Haven’s dam. I could cross there at Bush’s where the bridge is now. There was an island there. I could wade across there and below quite a distance; that is, just below where the Jefferson bridge now is. I do not think there was a regular ford there where teams crossed. I 1456 think there was a bridge. I never saw any boats used for commercial purposes come up and down the river; I never heard of any for that purpose. Q. Skiffs could not be taken clear up and down the river with- out portaging them! (Objection by counsel for complainant to the question as lead- ing.) A. No, sir. Witness. From my familiarity with the river a man could not always take a skiff all the way up the river. 'When I could wade it, it would be about 16 or 18 inches, and you could not run a very heavy boat over that, and you would be off and on the rocks ; you would have to stop and carry the boat. A small skiff might 1457 run. I waded the river time and again from one bank to the other. The canal commenced long before we came here. It had stopped then. When it commenced the second time we were in Lockport. Cross-Exambiation, I would be 72 years old — I could not be positive wliat my age is; my memory is very bad. Going back to tlie early days, 1458 some things I remember and some things I do not. I remem- ber the Irish riot with the Orangemen, such things as that. I was able to wade this river different times ; as a general thing the water was about 18 inches then, and you would run across a hole about 15 feet deep; there I would not try to wade it. When I said that this river was not navigable and is not to-day I meant 3458 that there is not five .or six feet of water in it. There is at places. I would not like to consider a river navigable unless it had four or five feet of water; that is what I mean when I say this river is not navigable. When the water was very low in the river it would run from a foot and a half to two feet. I am accu- rate about a great deal of this, but there may be some things that I may not. Re-direct Examination. When I said the river was not navigable I meant that I never knew of it being navigated. 1460 Re-cross Examination. There may have been boats coming down from Chicago toward Lockport. If a boat could get along on 2-1/2 or 3 feet of water it could have come down this way, but a loaded boat would not be apt to do that. Adjournment to 7 :30 P. M., January 16, 1908. 1461 Lewis K. Stevens, a witness for defendant, testified as follows : Direct Examination. My name is Lewis K. Stevens. (Objection by counsel for complainant because notice of ex- amination of said witness by deposition had not been served the witness.) I live at 203 Oneida street, with Charles L. Stevens, my son, in Joliet. I was born here, right over east; have lived here since 1836. At present I have been in mining in the west. For the last 548 eight or ten years I was farming and working in the stone 1462 quarries, and all that kind of work; contracting a good deal through Joliet. I have been living here you might say con- tinuously all my life. I would be away off and on business and back again, but it has been my home. I don^t live now in the same place where I was born. I am living on the west side. The E. J. and E. yards are our farm where I was born. I remember merchandise and produce was brought to Joliet prior to 1848 with teams, as a general thing. I don’t know of any other way to get it here. I know of produce being hauled between Joliet and Chicago at that time. I was 12 years old in 1848. You understand that I am speaking now of the time of the commencement of the operation of the 1463 Illinois and Michigan Canal. People would travel in wagons in those days between Joliet and Chicago. There was not any other usual or customary method of travel between Chicago and Joliet in those early days. There was wagon, and stage and horse- back. There was a stage line running through on the west side of the river down from Chicago. It came down and went through to Ottawa. I don’t know whether it went further south than Ottawa. I didn’t travel on that line, or the stage; had our own teams. First time I ever went to Chicago was in 1843. Went with a wagon load of wheat, and brought back some salt and a little lunv ber and other things that father wanted at that time. I went 1464 with my father. I went there a number of times, every once in a while, with our team. After they commenced to operate the canal there was not a great deal of teaming. There was some even then, but the canal would do most of the freighting. Before the commencement of the operation of the canal there was some teaming to points on the Illinois Eiver, — not a great deal. They brought goods from the other way. There was stuff brought from St. Louis clear to Joliet. Before the canal it was brought with teams exclusively, as far as I recollect. I didn’t personally know of any merchandise or commercial articles having been brought up from the Illinois Eiver to eloliet along the Desplaines Eiver. I never heard of any boats plying along the river south of Joliet and used for commercial purposes. 549 either in the transportation of freight or passengers, along the Des- plaines Eiver; nor of any plying between Joliet and Chicago. I never personally knew of any snch boats being operated on the river. Never heard from anybody in whom I had confidence, or from old settlers who lived there that there was any boats used up and down the river for commercial purposes. I am personally familiar with the river through Joliet and a little below Joliet and up to Lockport and Chicago. I have crossed the river a number of times and been up and down it on the banks. 1466 I know the general condition of the river in different sea- sons and the current; knew the condition before 1848. The condition generally of the water of the river during the summer months between May 1st and October 1st, as to the amount of water, would vary a great deal. Some seasons that I have known, the river you would not know that the water run. You could walk over the rocks ; it would seep through ; almost dry in places. There would be very little water in the river at times, and then wet seasons there would be water and floods, and there would be a great deal of it coming down from the side-hills all along up and down the river. I don’t remember any season when the water of the river was high all during the season. 1467 There were several places we forded the river; when we went in about Washington street, here, and crossed the river on the island and went through there, — ^that is here in Joliet. Up a little this side of Lockport, there was one. We owned that; owned the old Norman property there. I have forded the river there a good many times. We had 250 acres of land in the town of Lockport. I forded it a number of times right west of Lock- port. There it was very shallow. At Lockport they drove right through. The one up there at Norman’s was only teams going in for wood. The one here at Joliet was a regular ford for 1468 teams, — a regular wagon road across the river. There was not very heavy loads drawn in those days. That was the only means of crossing the river prior to 1848, until they built an old bridge at the island. They had a bridge there before that time, — kind of an old wooden bridge. This ford was commonly used during the entire summer season, — quite a little traffic over it. There was not much current. There would be places there 550 Lewis K. Stevens, — Direct Exam. — Continued. where there would be rilffles, but there was not fall enough to. make any great current. There was not fall enough from the Chicago down here to make any current, — never was. The 1469 water will stand along in pools and run slow. There would be a little current where the riffles were, but nothing very swift, — only in high water, — then it will rush down. From here up, there was but very little current. There was a little from Lockport down, but take above there, there was hardly any cur- rent; in fact the water would run back the other way sometimes, — when the water got high in the flats and the heavy water would flow into the lake. Where those riffles were, the normal depth of the water dur- ing the entire summer season would be from 4 inches to 2 feet. I have driven right through where the riffles were and ridden through on horseback; never walked across. I could have gone through because at some places it would not be over three or four ' inches deep. These places were at the riffles. The one at 1470 Lockport there might have been four or five rods wide, — about four or five rods up and down. That one at Joliet near where Washington street is was shorter. It dropped down a little ways and then there would be holes there, — that is, where the island stood. There were some riffles below, but I was never fa- miliar with them. I know of riffles down near where Brandon ^s Bridge is. It was not very extensive in length, — 10 or 15 feet long, I guess. That was a place where they crossed there. At that time it was called a regular road. Of course, there was not so much travel there. They did not use it much. 1471 I never traveled much through there where Treat’s Island is. I never paid much attention to that. It was out of my range. I never saw any boats going up and down the river over these riffles. It was not possible for boats to go up and down over those riffles and float all the time. You would have to drag them in places. I never saw any boats of any kind in the river, except little row boats, that they dragged down and went fishing in. lYe had to drag it out around the dams and places of that kind. Prior to 1848 there was a dam in the river here at Jefferson 551 street in Joliet. The old Malcolm dam down below here remained there until the Drainage Canal took it out, bought it of 1472 Adam, and took it away. That is the dam that is spoken of as the Haven Dam. I guess it is just south of the city limits of Joliet. There was a mill at that dam. There was another dam at Lockport just west of there. The Norman Dam was this side of there. That was the old Daggett Dam. Daggett got it after- wards. It was Norton’s mills. The Norman Dam was situated on the property father and Goodspeed got of Norton afterwards. The Norman Dam was in the Township of Lockport, about a mile above the prison, on what was the old Sanger farm. They were all in the river before 1848. 1473 I don’t know there was a dam at Treat’s Island, only from hearsay. I never saw a dam there. I never was down the river near the mouth, at the place called Dresden Heights in the early times. I was there somewhere along in ’62 or ’3. I don’t know of my own knowledge that there was ever a dam down there. I have heard that there was; that is only from hear- say. 1474 All these dams that I speak of being in the river before 1848 were clear across the river. There was not any way whatever in which boats could go up through those dams. There were very few skiffs used in the river before 1848 that I know. of. Some young people would go fishing or hunting, or something of that kind. That is the only purpose I ever knew it to be used for. I was up at this island between Joliet and Lockport a-fishing and hunting there. We had a boat. We were up the river at what they call Lillicache above Lockport, and part of the tinie at this island above the old Norman property. I paddled around a little there, fished some and killed ducks in the early days. I never did much of that. I was generally busy on the farm, I was not much of a hunter or fisher. I have never known of the river being navigated by boats for commercial purposes since 1848. It could not be, on account 1475 of the dams. It would not be possible for any boats used for commercial purposes to have gone over these riffles during 552 the summer season, at the normal stage of water. If there had been no dams there, it would have been impossible in my judg- ment to have navigated the streams. We had a fence across the river at the old Norman place. We had wire stretched across and boards hung down in. My father and Judge Goodspeed owned the land on both sides of the river. I don’t remember the section but it was in the Township of Lock- port right above the town line, and took in the island. There was 250 acres. It was this side of the Lockport Dam; must 1476 have been a couple of miles. It was the Norman property. There was part of the dam left there, but not very much. It was only across one branch at the head of the island. The fence crossing the river was below the dam and then it ran around up to the dam. The fence was put there just to keep a little stock in there. I cannot say exactly when it was constructed. I remember father sent me up there one time to look after peo- ple that were stealing timber off of it. That must have been be- tween 1845 and 1846. I was quite a boy. There was a kind of a fence there then, mostly brush fence, — except across the river, — just enough to keep stock in there. There was some of the 1477 old remnants of the fence there then. I think it remained there some fifteen years afterwards. It was fenced in around there on that flat, — in fact has been fenced more or less from that day to this. There would be times that they had wires across the river. I don’t know but there may be wires there yet. I don’t know of either one or two other fences there. Of late years there has been more at the pastures up through there by Allen’s property and Fitzpatrick’s, that was this side and the other side of Lockport Eoad, which runs right west of Lock- 1478 port. These other fences that I spoke of were between Joliet and Lockport, and I think there is a fence or two above the road on the other side of Lockport. I cannot remember any special fence, — only the one on our 1479 own land there. The fences were put in there after the canal was built. It must have been in 1848 or 1849. I was up there last year, and there were some fences, scattered through there then across the river. This is where the old river used to be there then. Since tlie\^ have o])ened the Drainage Canal, — the river-l)ed was on the west side of the canal ; — that is where the fences are across the bed of the river. You see it is not the present bed of the river. They are on the west side of the bed of the river now, but the old river-bed used to be west of that. They have changed that since They have cut the Drainage Canal through and left the old river- bed on the west. The fences established on my father’s land 1480 was where the river ran in olden times, not where the river runs now. The fences other than the fences on my father’s land were across an old abandoned bed of the river after they started this Drainage Channel through there, but when the fences were built it was the river. The fences were maintained up to the present time because there is no channel there. The 1481 channel was not changed until they built the Drainage Canal; that was about 1899. These other fences were maintained across the stream where it was flowing prior to 3899, ever since I can remember. C ross-Examination, I have never seen any commercial navigation on any part of the Desplaines Eiver. Have not seen anything hauled up or carried on boats on the river, or any stone taken down the Desplaines River on any boat, to be used for improvements. I am not the gentleman who made a statemenf here a few days ago concerning what I have seen hauled on the river. I made 1482 a statement that I had seen a dock below here, but what it is for, I don’t know;. but not any boat or any stone on a boat. They asked me if I had seen a dock, and I would have sworn to it in Mr. Chaney’s office. I thought of it afterwards what that dock was built for. That dock was down at Brandon’s bridge. It was some stuff thrown up there that looked like a dock, but in my inquiries since, they would cut wood and throw it on to that place and draw it away in the summer time. When the lake was frozen down there, they would run the wood across and pile it up. This was down near Brandon’s bridge, a mile, or a little over, below Joliet. I don’t know anything else I said in that statement I swore 1483 to the other day ; only I had seen a dock there. I told them I had never seen a boat or craft of that kind. I think I know 554 Lewis K. Stevens, — Cross-Exam. — Continued. what a dock is. That was not what yon call a dock now. It was what yon called a dock in those days. A dock in early days wonld^ he a log thrown down any place to tie a boat to. Its proportions were not such as to meet the ideas of a dock to-day. There was no snubbing post or anything of that kind where a boat could be tied. They could tie it to the logs that lay there. It could be used for a dock, but you would 1484 not call it a dock at the present day. I said it could be called a dock, but I did not say it was one. I do not think it was a dock. I did not testify the other day that it was a dock. I said it was some stutf piled up there that looked like a dock. 1485 I did not state in my affidavit that it was a dock. What they put there I don’t know. I told them plainly that it looked like a dock. They read the affidavit over to me. I did not have my glasses. I cannot think of the man who prepared the affidavit. He was in Chaney’s office. Claire took the affidavit. It was not Stevens. I think it was Purkheiser. I did not go there and tell him what the facts were. They asked me and quizzed me in every way, and I told them jilainly that I knew nothing about any- 1487 thing of the kind. They asked me if I could make an affidavit that I had seen something like a dock there, and I told them that I could do that if there was something thrown in there. I talked very plainly to them, — just as I am talking to you; that I thought it was outrageous to think of a boat being there; that they had lived there just like myself, and I had never seen a boat going up and down the river. I told those gentlemen all the things that I have just now been relating in regard to the boats, and things of that kind, and the dockage. I did not say in that affidavit that stone were taken down the river in a boat. I told them plainly I never had seen a boat on the river. I did not on the occasion, — when I talked to those gentlemen in Mr. Chaney’s office and when the affidavit I have mentioned was pre- pared and signed, — state to them that in 1835 rock was loaded on a boat and sent down the river. I did not state to those gentlemen on that occasion that stones were quarried near the river and 1488 loaded on a boat and sent down the river. The names of the gentlemen present in Mr. Chaney’s office on the occasion 1 000 made the affidavit I referred to, were Mr, Chaney, Mr. Reiley 1489 and Mr. Purkheiser, I think. Those gentlemen were all pres- ent when I said on that occasion whatever I did say, — all except Chaney. He came in to take the affidavit. I might have said some things when he was out. The others were there when I went in and after I went away. IVhat I stated to those gentle- men was true as far as I am concerned. It was true the way 1490 I understood it. I have not taken any interest in this law- 1491 suit. Yesterday was the first time I ever was introduced to Mr. Munroe. I had just a few words with Mr. Munroe yes- terday; no talk at all; simply if I could testify in regard to the river being navigable. I told him I could testify to what I knew about it. I had a little talk with Kercheval, my cousin, al)out what I was going to testify here; Charles Kercheval, — I talked with him the da}^ before yesterday first. I don’t know anything about 1492 his taking some interest in behalf of Mr. Munroe or the de- fendant in this case. Only he telephoned me and wanted to know if he could see me, and he asked me about it. We talked over about the river. He and I agreed. I did about as much talking as he did. He did most of the talking. He asked me what I knew about it, and I told him. He asked the questions and I answered him. I know he and I agreed because in talking it over we agreed on those points in regard to the river and the boats. I did not agree anything with him what my testimony should be to-day. He did not ask me if I would testify here to these matters. He telephoned me and asked me if I could 1492A be a witness in this case. He did not ask me if I would testify to any particular things. In regard to the navigability of the rivers, he asked me if I could testify to them, and I told him I could most certainly, what I knew about it. There was not any suggestion made by either of us what the answers would be. ^ We talked about the riffles and dams, and things of that kind. He mentioned some of them first, and I mentioned some of them. We were comparing notes, how it was in past times. I remem- bered some and he remembered some, and I have testified to all that I remembered and all that he remembered. 556 Lewis K. Stevens, — Cross-Exam.— Continued. I was born right here east of Joliet, abont a mile and 1493 a half. I am in my 72nd year. I did not do mnch fishing and hunting in my time; was generally busy on the farm. Never even ran a row-boat myself. Did not do a great deal of business on the water. The fences I spoke about that was across the river at my father’s farm, was a wire stretched across and then some boards hanging down from the wire. That constituted the fences. The wire was perhaps two or three feet above the water. It would perhaps not be more than a foot above high water. The water has a wide scope in there. The river was not so wide, but 1494 the lowlands were a mile wide there. The river there was perhaps 6 or 8 rods wide. That would be from 100 to 139 feet. This wire was stretched across there. The boards suspended from the wire were little poles and hung down there. I could not say how long they were, — perhax)s 6 or 8 feet, per- haps 10 feet. This wire was stretched at high water perhaps a foot above the water; in very high water it might run over. They did not reach to the bottom of the river. They hung along length- 1494A wise, and the water would swing them back. If those poles were from 6 to 8 or 10 feet long and from 1 to 2 feet above the water, the water must not necessarily have been from 4 to 6 or 7 or 8 feet deep. The water down below is not so very deep. It was perhaps a couple of feet deep. "When it raised it would be deeper. In low water, the water was probably 2 feet deep ; in high water it probably would have been over the top of the wire. In low water it was perhaps 4, perhaps 5 feet above the sur- 1495 face of the water. As near as I can remember, it is right that, in ordinary high water, it would be within a foot of this wire, and in low water when the water was only about 2 feet deep, the wire would probably be about 5 feet above the surface of the water. I have answered that boats could not have gone up and down the river because of these dams. It was because of the water also. I don’t think there would be water enough in places. At somy times and in some places, I don’t think there would be water enough, — I mean riffles. I have seen the time right here in Joliet 557 that the water would stay back and would not run over for a week. I think for commercial navigation that there should not 1496. be less than 4 feet of water. I think you could not navigatd a river with less than 4 feet. I say in going on the river there would not be enough water there, — I say it on that account — not above 4 feet. But vdien we have 6 inches, I have seen the river when there was not more than 6 inches, and I know 1497 it could not be done in 6 inches. I mean on the riffles all along the river. I don’t mean literally ‘^all along the river,” — I mean where the boats would have to go through in the river. It is true that in a good many places the water is 10 or 12 feet deep on this river. It is also true in certain seasons on the riffles it goes down to 6, or 8 or 10, or 12 inches, and where it don’t run at all. It runs underground, seeps through. I literally 1498 mean that it don’t run above the surface at all. I mean it runs between the rocks wherever there would be holes. I have seen that kind of a thing in places where the water was 2 feet deep. It would be where you had rocks and gravel. If there was rocks piled up and the water two feet deep, it might be a lot of little rocks and gravel. I mean to say that in 1499 the Desplaines Kiver gravel and rock were piled up by na- ture, washed tKiere, so that they would constitute a riffle. The water runs through pretty deep sometimes. There would be gravel and stone, — no telling what kind of a riffle there would be. I mentioned three fords in the river: one right west of Lock- port, one near here on the Norman property, and also at 1500 Washington — Jefferson St. Take Brandon’s bridge, I forded there some. In the summer time when I went through there I crossed when the water would be about 18 inches deep, — prob- ably a foot to 18 inches. Lockport, I went there when it was not more than 6 inches deep over the ford; the two other places down there perhaps a little deeper. It might have been two feet deep in the deepest places at Washington street. At Norman’s we went through there and there was no regular road across the river any place there. It would be a foot to 18 inches in the sum- mer time, at low water stage. There was no regular ford there,— that was our land. We would just go across ourselves. 558 Lewis K. Stevens, — Cross-Exam. — Continued. 1501 I said there were perhaps a dozen times I went fishing. There was a number of times, perhaps a dozen times in my life. I was with some parties at one time, and we had a skitf np there, a little row boat, a paddle boat, — pushed and paddled down and shoved it along. I said I did not remember how many times, several times, — perhaps a dozen times. I do not know what I said in my direct examination. T said there was not much current in the river. I am referring to the current above. 1502 I said there was more current below than there was above. It dropped sometimes, — say go for several rods and then it would drop 6 or 8 inches. It did not drop very much. I mean by the current, where the water descends a little, where there is a descent in the river; that is what makes the current. It is the moving of the water, — the speed of the water in the river. The current was very low on the riffles because there was not flow enough to make it. It was not very swift, — pretty slow. I never figured on the mileage or anything of that kind. 1503 I don’t know if it was running 15 miles an hour, — perhaps about a mile an hour. There were places where it might have been a little faster than that, — I would say at the rate of two or three miles an hour, but not very swift. The ford above Lockport is above the dam, — above the Lock- port mill. It is perhaps one-half a mile. The dam is not more than four feet high, — four or five, I don’t know what it is now. At that time it was about four or five feet. At the ford above the dam the water is clear down up there in the summer time. It would not be six inches. The water was not backed half way up to the road. It was backed up one-fourth of a mile, so the ford is clear above in back water from the dam. 1504 There is a dam at Jefferson St. just a little above the ford at Jetferson street in Joliet. I think it was ])erhaps th]-ee or four hundred feet. There was no regular ford there at Norman’s, — just rode through the river at different places. The fords I mentioned in direct examination were: one at Lockport and the other at Norman’s this side of Lockport, a cou])le, or three miles below Lockport. This one was not a i*egu- lar ford. Two of them were regular fords; and then the one 559 down at Brandon’s Ijridge was a rognlar ford. At T.ock- 1505 port, I don’t think I ever saw it at liigli water, over five feet above the low water mark. Those other places it would be a little more. I have seen it when it broke down through here; it would raise 6 or 8 feet here in Joliet. I don’t know that I stated anything that one month at a time during the summer time there was deep water. I have not any s|)ecific recollection of the year 187G. I was living in Chicago, went up and down here. I knew there was considerable floods here. J)uring the summer months, — May, June, July and August of that year, I am of the opinion that the river could not have been very high. There might have been ])lenty of water in it, Imt spread around a 1506 good deal. I knew there were times that the river did flow out of its banks, run around through Spring Creek down over our farm. I don’t just have in mind what time it was. There was more water in the river as a general thing during that whole summer season up to September. I cannot say in regard to 1507 whether there was four or five, or six or seven or eight feet there in that year. It was along in the spring, in elune, I think, the times that I was fishing in a boat up there. AVe went out into the ponds into the river; the ponds through the river. We took the l)oat in a wagon wdien we went up there, — just fished around there where we thought there was fish. AVe hunted deep places in the river to fish. The water was five or six feet deep where we were. That was below the Lockport dam, — perhaps a couple of miles, this side of it; and another time this side of the dam up above Lilli- cache. It was this side of the Norton dam below it. I was close to the old Norman Dam, was up a ways. Re-direct Examination. 1508 AVhen we went fishing and took the boat in the wagon, we took it from Joliet. AA"e could not take it up the river very well. We could drive it down to where we wanted to fish and get out on the pond. We took the boat back on the river sometimes. That must have been after the canal was built. That must have been in 1849 or 1850. 1509 My testimony that the current was not very swift over the riffles applies to that part of the river above the dam 560 and below the dam; where the water was running that would give it a momentum. The water coming right over the dam might run at the rate of 40 miles an hour. It was swifter below Joliet than it was' above. When I was down at Treat’s Island it was swifter a little down there than it was this side. There was a place down near where Smith’s bridge is now that was pretty swift. I never noticed the current much below there. 1510 I spoke of poles that were attached to the wire fence across the river at my father’s farm. There would be a wire across and then they would hang some light poles on, and the poles would liang down below the bottom of the water. When the water would run it would swing them up. The poles were loose at the bot- tom to keep the cattle from going in. I did not mean to say that I agreed to testify to what Kerche- val remembered. What I have testified here is what I remem- bered myself. Kercheval asked me my remembrance on things that I would remember. He would talk just as any man would about the circumstances of the river at that time. Of course, it brings things to your remembrance that you would not remem- ber if you had not talked about it. Re-cross Examination. 1511 Where I said the poles went down below the bottom of the water, I did not mean that I meant down below the bot- tom of the wire. It went down below the top of the wire in high water and below the water always. This skitf that we went fishing in was a little boat that we put on the wagon. It was 10 or 12 feet long. It would weigh about as much as a common wagon box. Two of us would be in at a time of a fishing expedition. Our taking it in a wagon was 1512 simply an expedient way of doing it. We put it in the wagon and drove it to the fishing grounds. That is what we did it for. I think I said the river at the place where the wire stretched across it was from four to six rods wide. Q. Did you not say six or eight rods, and I reduced it to feet, and you said 100 to 130 feet? What is the truth about it? A. You said about 100 feet, if I remember right. 5G1 Jacob Adler, a witness for defendant, testified as follows: Direct Exainination. 1513 My name is Jacob Adler. I reside at Joliet. It will be 70 years next spring since I came here the 17th of March. I will be 72 next March. I came when I was two years old. I have not lived in Joliet continuously. I lived up at Hickory three years after we came here. That is what was New Lenox, in AYill County, six miles from Joliet. Then we moved from there. I bought a place down next to what we call the edge of the lake, — Brandon’s Koad as you probably know it, — on top of the blutf, about two miles south of Joliet I guess. During tliis entire seventy years I have lived in Will County at these three places. I was a farmer until I was 20 or 21. After that I went to Pike’s Peak in 1859, then T came back and started a butcher busi- ness in Joliet, that was in 1860. I have been in business ever since. I have retired.’ I am with the boys, but I don’t do any- thing much, — only go and see the pasture and cattle, and some- times I go out and buy. That was my father’s farm where I farmed up to the time I was 21. It was about two miles south of this; south of where we lived", down near by the river, — that is south of Brandon’s Eoad. 1515 The first farm where we lived was along the river, part of it was to the river. In the early days we das sent go on the prairie because there were so many sloughs. We could not get to town, there was no bridges. At that time none of the farm lands laid on both sides of the river; since that time, — I think about 1860, I bought one and a half miles along the river on one side. I rented some on the other side, — about a mile I think it was, sometime in 1865 or 1866. I still own some of the land that I bought, but I sold some of it. , I pastured some of that land after I went into the butcher business. I have known the Desplaines ever since I was six years old, when we moved there, and I have known it ever since. I had pastures that I bought there somewhere along in the ’60 ’s. I was familiar with the river ever since and before that. 1 1516 lived I guess within 80 or 100 rods from the river. I was familiar with the river before the canal commenced opera- 562 Adler, — Direct Exam. — Continued. tions in 1848. In 1848, I don’t know of any more dams than up town here. I was driving cattle up to Lockport, and I saw the dam there, that they called the ‘^Old Daggett Dam.” The dams that were built in the City of Joliet were built before 1848. I think there was what yon call the Haven dam, and the dam at Jefferson street, and the upper dam. The upper dam is 80 rods above this dam here on Jefferson street. It extended clear across the river. There were no mills on those dams, but at that time there was a mill down here that we called the Havens mill. There was a dam there. I think that was first a sawmill and then after while they built a grist mill. I saw a dam at the north end of Treat’s Island; I could not say when I saw it first. I was a 1517 boy and we went down. Onr cattle ran that way sometimes in the spring of the year, and we went down and I saw the dam there. I think that was before 1848. I don’t know that there was any dam further down the river nearer its mouth in those days. At Washington street there was an- island there, and there was a bridge from one island to the other, and then over to the other side. At that time it raised it over the canal. That was some time when I was 8 or 9 years old, — I guess that was before 1848. There was a bridge down there at Brandon’s, what they called the Brandon road; I forget when that was built. There were piers in the middle of the river, and then there were logs on it and boards. and we went over it. I don’t know when that was built. !1518 These dams that I have spoken of were not so constructed that it was possible for boats to go throngh them. I was not familiar with the river above Joliet in those days, more than some- times I went up there to get cattle. I think what yon call the Daggett dam was there before 1848. It is southwest of Lockport. I don’t remember a dam called the Xorman dam near the penitentiary, where the penitentiary now is. My parents came to Joliet or Will County driving with a team. We moved from Chicago in the spring to Indiana, and the same summer we moved with the team up here between Lockport and Joliet. During my youthful days I had occasion to go to Chicago from Joliet. Went by ox team. Went up there to sell our wheat 563 or corn and then we would bring provisions back. That was 1519 the customary method of the farmers at that time in taking produce to Chicago. There was not any other method that 1 heard of or know of. I never knew of any boats being navigated up the Desplaines River from Joliet to Chicago carrying produce, merchandise or freight. Never saw a boat on the Desplaines operate for the pur- poses of commerce. I never saw any boat on the Desplaines other than a skitf. Never heard of any. Never heard of any freight or merchandise or produce being brought from points on the Illinois River to Joliet by boat along the Desplaines River. Not more than what I heard said. Q. What did you hear about that? 1520 (Objection by counsel for complainant.) A. I have heard them say that they came up as far as LaSalle, and the time they were building the canal that they brought stuff over that way along the canal with teams. The Witness. I heard that at the time they were building the canal. I never heard of their coming over Jo Joliet that I know of. When I was a boy it was not possible to navigate boats up and down the Desplaines River between its mouth and Chicago. In 1870, or something like that, they pumped in the water from Chicago. The water came down the river and made it bigger. Be- fore that water came down, the main river was very little, when there were dry times. Then there was a little water running over the stone in the riffles. After they pumped that water down the river got bigger on both sides and the brush and trees died 1521 from that water, and it was pretty near all brush on both sides, so that the boats, if they would come up the main stream when the river was high, would run over on this corner, and then after a while run over on the other corner, and run through the brush. There was no boat could go up in these riffles, even in high water, and the currents would strike and go straight across through these trees and brush. You could not go down the river. If you would have a boat go down the river it would run on this brush. In my boyhood days w^e got across the river by fording it. The 564 Adler, — Direct Exam. — Continued. main ford was about one-fourtli of a mile at the edge of the lake, what they call Joliet Lake, at Brandon’s bridge. There was 1 522 a ford that came down and went over the river that way and went up across the other side where the bridge is now. There was no road. That ford was the regular road. Later all those Truman folks down there used to drive over that way to Joliet. We have taken heavy loads across there. Brandon used to cut their timber on this side. They used to tee across that ford. When there was a freshet there they could not go across. They pumped that water into the canal and sent it down. If it rained a good deal the river was big, and if it did not rain, in a few days — a week or two — the river would be low. At that time the river was not wide, but when it was big it flowed over, probably a half mile wide. When it was dry it was probably 100 feet wide. 1523 In the summer seasons when there was no freshet, usually you could walk across it on the riffles with your boots on the stones. It just seeps through. That was before this water came down where they pumped it in. There was one riffle right above Brandon’s bridge. I suppose it was probably 100 or 200 feet. There was one right next to the lake there we used to go over with our boots on in low water; that is, just below Brandon’s bridge where they forded. I have known other riffles down near the point where 1524 Smith’s bridge is. I crossed there. There was a riffle below Treat’s Island, which might have been two or three hundred feet. I drove cattle across back and forth. There was a regular wagon road across there. I think there was a riffle above Treat’s Island next to the lake. There was a ford just below the bridge that went up on the towpath. That is the bridge now known 1525 as the Jefferson street bridge. They drove backwards and forwards there. I have been on the river in a skiff, — a little canoe boat fishing. We wmuld not drag it over the riffles; we would just stay on' that side and walk below, if we wanted to fish. It was not possible to navigate even a rowboat across these riffles without you got out and pulled it. During the summer season, while the river was in its normal condition you could not navigate a rowboat over 1526 these riffles. I am talking about way back in 1848. The water was turned in here first about 1871. I am talk- ing about the condition before that time. When I was a l)oy I walked along the river, — went after cattle. We could see the river from the house, see the whole of it, up as far as the lake and Bran- don’s bridge. There was a dam there, but below that there was not. Before 1871, as I said before, you could not navigate 1527 the river in high stages because the river would run through this brush and timber. I do not recollect any fences being built across the Desplaines Kiver when I was a boy. Everything laid there in common. Cattle ran backwards and forwards, and there was nothing fenced up. I put a fence across just a little above Brandon’s bridge, and at the city limits of Joliet, that was on the land that I owned and leased. Mr. Sanger had one side and I had the other. I put that up some time in 1860, or 1866; I ain’t certain now. It remained there until about fifteen years ago, — from 1865 to 1893, somewhere along twenty-eight years. I don’t know as it is. I leased that on 1528 the other side. I sold that place to a syndicate down there, and did not pay any further attention to it. That was on either Section 20 or 21. Q. Will you look at this map, Mr. Adler, and then tell us if you can, what section it was that that fence was on? A. (Looking at the map) 21, that is right. Q. Then it was Section 21, Township 35 North, Eange 10 East of the Third Principal Meridian, in Will County in Joliet Township. Is that right? A. Yes, sir. That fence was above Brandon’s ford. I think it was about 10 or 15 rods above Brandon’s bridge. 1530 There was a fence up next to the city limits. South street of Joliet. I built that, it might be in 1866 or 1867. I know I bought it in that neighborhood, and when I bought it, I fenced it. That fence remained there as long as the other. I built both 1531 of those fences at the time I bought the land. If I bought that land before 1865, I fenced it before that ; and if I bought it after, I fenced it after. Sometimes, when I did not forget it, I would go and take these fences up in the fall of the year ; if I forgot it I would put them up in the spring, but took them down in the fall, so that the ice would not carry them away. I fenced that be- 566 cause I leased of Sanger that land on the other side, and it saved me the trouble of fencing all around it. The distance between the upper fence and the lower fence, Idt-a- corner across, was about 160 acres, I should judge. I don’t know of any other fences down there across the river at any time. I saw fences above Joliet. I sold some cows to Sanger. I went there and bought some in pasture, and I saw fences across the river 1532 there. It was a little above the state prison, two miles, or a mile and a half above what is known as the Sanger property. T saw these fences there about 1865, along there. I don’t know that I saw them after. Yes, I did. I went back and forth across the river to see cattle, and I would see fences there. I cannot recollect how many years. I don’t know of any fences across the river below Joliet except the two fences I put in there myself. I know of fences that ran into the river at right angles to the river. I built fences of 1533 that kind myself, on my own land. That was later ; I cannot tell what time it was. I could not remember the years ; some time after I bought the land. lYe generally built them extending into the water, so that the cattle could not go around. Other farmers and land owners had fences of that kind. I had a piece of land below there, about a mile, and I used to run the fence in quite a ways. There are other fences run in the river there. The river is deep there. 1531- Cross-Examination. Those fences which I built across the river were built many years after the canal was in operation. I understand the Illinois and Michigan Canal was put in operation about 1848. Those fences, l)uilt down into the river, were built to keep the cattle from getting out where the water was too deep for them to go around. I built the fences out. Sometimes the water was four or five feet deep. I built them so that the cattle would not wade around. At the fords I have spoken of before they let in the water from Chicago, in the summer time, the riffles sometimes were al- 1535 most dry, and then where the water was standing it was deeper. At some seasons of some years there would be very little water running over the riffles, and at other seasons it would 567 flood the whole country. Sometimes they forded it when it was three feet deep, and occasionally even deeper than that. I donh think there was a bridge down near Brandon ^s Bridge where it is now, in the early days. The bottom of the river was stone and hard, so that you could haul a load across. There 1536 was too much water there to ford in flood times,^ — there was in the spring of the year. The water in the river when there was freshets would run off quick. It would go if it stopped raining. After an extremely hard rain, and if it did not rain for a day or two, it would go in two or three days. There were enough times when they could not ford the river, so that they built the bridge. When the river was big, it would come and run around this way (indicating), and this way (indicating). The rains would come right through the main stream. It ran through the timber half a mile. 1537 When the river was low it stayed within its natural banks, and when it was very high, it went out over the bottom lands. 1538 There was not any bank for it to strike when it went out of its banks. It was pretty level all the way through. There is a little bank when the river is low, but not much. In the high water, the canal bank was one bank, and then the bluff on the other side was another. There was a bank on both sides. This river is pretty flat, and when the water is high it don’t lag at any 1539 of the banks, but goes through the brush and everything. After it went on southwest across the bottoms it came into the lake, and then there was a bank on each side. When the river was high and ran across the bottoms, it went until it came to a bank of some size or other, and then it turned the other way 1540 again across the river. That is true of all rivers. When the river ran over the bottoms that did not cause the old chan- nel to be emptied, it was also full. 1541 In the old channel the thing to hinder a boat from going up and down when it was high was the riffles which were so strong it could not go up. I am not an expert on what a boat can do in water, more than to run a skiff. You could row across the river straight on one side, and probably go down to about one-half or one-fourth of a mile. You could not go up it when it 568 Adler, — Cross-Exam— Continued. was liigli. I don’t think a sail boat could have gone up and down. It might, hilt I don’t see as it could. I have seen a steamboat on the Mississippi where the current was very rapid. I have seen some very rapid currents on the Mississippi. Sometimes the boats would run across a log or brush, at other times they would go right on where they wanted to. This current here was a little stiffer than in the Mississippi, I think, a little more rapid. I went from St. Louis to Leavenworth. I 1543 think it was on the Mississippi. No, it was on the Missouri. It was in the Missouri that I saw the rapids. I don’t know as the current there was stronger or not stronger. I never saw a boat try to go up the Desplaines on these rapids. In these times, of this great current, the river was spread out probably half a mile wide, and probably it was five or six feet deep, — somewhere around there, on the riffles. I don’t know as it was more than four. I never was on it when it was high to measure it. This water that I referred to being pumped into the Illinois and Michi- gan canal was the water pumped in at the Stock Yards, Chicago. It ran into the river here at the upper basin, — that is, right 1545 here by the State’s Prison. Some of it ran in at Lockport. I think it is according to how heavy the trade is, how deep water is necessary for commercial traffic. I think if you have 1546 8 or 10 feet, it would run a good skiff across it. I should think that the water ought to be not less than 10 feet in the river in order that it may be navigated for commercial purposes. Probably it can run at 8 feet, or 7 feet. I am not positive on that, — only just what I see. I think my fences built across the river were 15 or 20 rods 1547 above Brandon’s Bridge; that is the lower one, the one fur- 1550 ther down the river. (The witness was here shown a map, previously referred to, and indicated the lines of his land thereon.) Witness (continuing) : — Instead of its being 10 or 15 rods, I think it was 80 rods. I see now, between this road and that section line is Davidson’s. I didn’t own the land shown on the map there, marked ^‘Pioneer Stone Company’s land”, brft the fences ran right along up to the canal. It was undoubtedly in Sction 21. 5G9 1551 Q. Then undoubtedly it (referring to the land fenced hy witness) was in Section 21. A. Yes, if I was studying on it and had been looking at it, I could tell better than I could at ran- dom when I don’t know anything about it. Q. Do you know as a matter of fact whether it was in Section 20 or 21 f A. Well, it was in Section 20. Counsel fok Defendant. 21. A. 21. It was in Section 21. Re-direct E xa m in at ion. 1552 It is a fact that the lower fence that I built on my land • was in Section 21. 1553 Q. After I called your attention to the fact that it was Section 21 a few minutes ago, you looked at the map and said yes, it was Section 21. (Objection by counsel for complainant on the ground that the question was telling the witness what to say.) A. Yes. 1554 William S. Bukt, a witness for defendant, testified as follows : D i rec t Examinatioi i . My name is William S. Burt. I live at No. 708 Prairie Avenue, Joliet. It will be eight years in March since I moved in here this last time. I lived 21 miles northwest of Lockport before I came to Joliet. That was in Will County. I moved there in 1865. I lived there continuously from 1865 up to eight years ago; about 35 years. Before ’65 I lived in different places around Lock- 1555 port and Joliet. I was born in the State of New York in 1830. I came to Chicago the 1st of October, 1850, and came to Will County the next day, and have lived here continuously since 1850, except for a few months’ time. I farmed quite a little bit when we first came to the country. I was boatman on the canal for five years. I was living in town up in the ’60s, keeping a saloon here in Joliet. When I left town in ’65, I went out on a farm. Before that time I had a farm for three 570 Burt, — Direct Exam. — Continued. or four years, east of Lockport, away back in 1858 or 1556 ’59. I managed tlie farm all the years I lived there. Before I came here in 1850, I was on the canal, on the Erie Canal in the State of New York. I was employed there about eight years. My duties were everything from driver up. On the Illinois & Michigan Canal, in the first place I was on the packet boats one 3^ear and a share of another year. After that I was running a boat from Lockport for a Mr. Martin a couple of years, and then a boat from Lemont, a steamboat. I am familiar 1557 with the kind of boats they have used on the Illinois & Michi- gan Canal. The boats were I think, about 105 feet long, and they must have been about 15 to 18 feet wide. They were allowed to load them down to 3 feet and a half. Of course they could load deeper than that, but that was as deep as they could be sought, on account of the depth of the water in the canal in places. The water in the canal, I presume, was something like 4 feet deep. Counsel foe Complainant. I want to object to each and every question concerning the navigation and depth of water in the Illi- nois & Michigan Canal. Q. Please state where the shallow places were in the canal be- tween Joliet and Chicago. A. There .was a place a mile or 1558 such a matter from Willow Springs. There was a little creek in there of shallow water, that was the only place I knew between here and Chicago. I have been familiar with the Desplaines Eiver since 1850, going fishing sometimes, something of that kind, I never was on it on the boats, rides or anything of that kind. From here to Lemont the Desplaines River runs pretty near the canal. Below here, after you get below Brandon Bridge, it is not so close, nor above Lemont. I never knew that below Channahon the canal turned in near the river and run along close by 1559 the river up a ways. I never noticed it. I was on the Des- plaines River fishing. I don’t know the first time I went fishing. It is pretty hard to tell. I never was much of a fisher- man, just go occasionally. But I don’t think when we first came to the river I went fishing for four or five years. AYlien I first came to the river, it was customary to cross the river at Lock- ]oort Bridge, a wooden low bridge, and at Romeo, I won’t say 571 whether there was any bridge or not. I did not cross any i^lace only at Lockport. Below Borneo I jnst walked across. There was no bridge at Borneo near 1850. There was no bridge till you 1560 get to Lockport. I don’t know anything about how the farm- ers hauled their loads across the river below Joliet. In 1850 there was a dam at Lockport that stretched clear across the river. It was known as Daggett’s Mill. There was a dam here at Jackson street, another at Jefferson street, another one down here, I guess they call it Adam’s dam. There were three dams at Joliet that stretched clear across the river. This dam I speak of as the Adam’s dam, is sometimes referred to as the Haven’s dam, and at 1561 other times as the Malcolm dam. That was situated some- where near McDonough street. The one at Jackson street was substantially at the place where the Economy Light & Power Company dam now is, known as Dam No. 1. I do not know of any other dams that were in the river at that time. I had no op- portunity to observe the river below Joliet. I don’t know anything about the dam at Treat’s Island. I never was at Treat’s Island but once. I didn’t notice any dam then. I do not know whether there ever was a dam at the place called Dresden Heights. 1562 These three dams at Joliet were so constructed that boats could not go out through them. There was a lock for the canal boats on the side. There were no locks in the dam at Lock- port. Q. Now, from your familiarity with the river, will you please state what was the normal condition of the river with respect to depth of water during the summer season, say beginning about the first of May, and ending about the first of October? Counsel foe Complainant. I object to his question, because the witness has not qualified himself to answer. What he has given of his knowledge of the river does not qualify him to answer these questions. A. Why, the depth of the river in some places varies very much. In some places there wasn’t more than a foot or so of water. 1563 Of course there were riffles and there were places with water 2 or 3 feet deep in deep places; very many places where you could walk right across by step]hng on the stones without get- ting your shoes in the water. 572 Bn rt, — Direct Exa m . —Continii ed. Q Was that the general and usual condition throughout the entire slimmer season of every year ? I mean by usual conditions, normal conditions, when there was no freshet or flood. (Objected to as leading and suggestive.) A. Yes, sir. Q. State whether or not there were a good many shallow places in the river, or rapids or riffles. (Objected to as leading and suggestive.) A. Yes, sir. Take it from Lockport, between Lockport and Komeo, there Avere more places you could walk across the river than there was where there was a depth of ivater, so you could not. This side of Lockport, there seemed to be a little more water. Of course they got some water from the canal there through the mill race. That was after 1871. Before 1871 I wasn’t so much acquainted 1564 with the river beloiv Lockport. Some of these rapids would be 15 or 20 rods long, some of them not so long. Some of them would be only just in small places a few rods. I crossed oA'er the river at this point a good many times. Q. Was it possible to naAugate boats up through these rapids or river without getting out there and bringing the boats with you? (Objected to.) A. No, sir. Q. Was it possible to navigate even a low boat or a skiff up through those rapids in the ordinary and normal condition during the summer season? (Objected to.) A. No, sir. T never knew of any boat or boats used upon the Desplaines Liver at any time for purposes of commerce; that is, transporta- tion of freight or passengers. 1565 Q. If there had been any such boat or boats used, Avould you have known it? (Objected to.) A. It seems as though I would. Q. Did YOU ever know or liear of any boat or l)oats of any kind used for commercial purposes, l)eing on tlie river l)elow Joliet? (Objected to.) A. No, sir. It was customary at the time I first came to this country for farmers to take their produce to the Chicago market by the canal. I did not even hear or know of any farmers in Will County taking their i)ro'duce to the Chicago market by way of boat on the Des- plaines Biver. I never heard of any ‘merchandise being f56() brought up the Desplaines River from the south by boat. The packet l)oats that plied upon the canal at the time I was employed there, carried mostly passengers. They had sleeping and eating accommodations. They used the regular cabin for dining room at meal times. At other times they used the regular cabin for lounging rooms. The boats would carry better than 100 passengers. These passengers were going to LaSalle to 1567 take the steamers from there. To make the trip from Chi- cago to LaSalle by way of the canal boat, would take about 24 hours by a passenger boat ; by a freight boat, about four days. I have known in late years of fences being constructed across the Desplaines River, wire fences, something of that kind. I don’t remember any fences across the river in 1850. I think the first fences that I could ever be positive about, is since ’65. I lived not far from the river, and I had occasion to go to the river quite a good deal. There were fences across the river then. That was two miles and a half northwest of Lockport. There were two fences right here. There was a lane that ran down from the main road, and we used to have to put our cattle there to water a great 1568 deal in the summer, because we had no water in the summer. I know there was a fence each side of that lane there at the river. It was a wire fence that stretched clear across the river. It remained there for 33 years that I was there, except when the high water or something of that kind would carry it away. The fence was rebuilt from time to time during that period. One side of the fence was kept up by a man named Whitman. His land was on the north side of this lane, and I think the other side was kept up by Fitzpatricks. There was another fence about a mile above 574 the Lockport road, running between Mr. Allen’s and Fitzpat- 1569 rick’s. That was above Lockport about half a mile. There was just one fence there. I noticed it soon after ’65. It is there yet so far as I know. I saw it frequently up to five years ago. I don’t think of any other fences. I think I could locate the number of the section upon which the first two fences were con- 1570 structed by looking at the map. Mr. Munkoe. V/hat township is it in? Counsel foe Complainant. I object first to the question, be- cause there is no proof that the map is in any sense correct, and second I object to counsel or to Munroe furnishing the map and the page with the section indicated to the witness. Mr. Munroe. What township is it in ? A. I think 36 Lockport. (AVhereupon the witness examined the map.) Mr. Munroe. Here is Romeo 'up here. A. I think here is one fence I speak of between Allen’s and Fitzpatrick’s; I think the other fence is here,^ but iHwas not up there next to Alexanders’. It seemed as though it must have been here some place in Section 15 according to that. It must have been Section 15, Township 36. It must have been on the section 1571 line. My place is on the north section line of Section 15. The other fence was two rods below it. The third fence was between Sections 15 and 22. Cross-Examination. 1572 One of the fences would be on the north side of Section 15; another one was about 2 rods south of that in Section 15, and tlie third would be on the south side of Section 15, between it and the section line south of it, which would be 22. There were 1573 two strands of wure. I have not been on the river so very much. For the first five years I did not go fishing at all, and have gone very few times after that. I used to have to drive my stock to the river to water ])i*etty much when I was on the farm in the Slimmer time. That constitutes the fishing that I was speaking of, and crossing the river and driving my cattle to the river con- stitutes tlie sum and total of my time on the river. The power of 575 the packets that run on the canal was motive power. The packets go about 5 miles an hour. The horses went a slow trot. While I think there was a limit of speed; that is, they could not run so fast as to throw the water over the banks to endanger them. From Lockport to Borneo, it is 3 miles, to Lemont, 8 miles. I said I was able to cross the river there stepping from stone to stone. T 1575 refer to the low water times. There were times when the water wouldn’t be 6 inches deep. That would be quite a dry time. In ordinary stages of water, it would be a foot or a foot and a half, and those were the shallow places in the river, and in high water it would go up to 5 or 6 feet. In high water between Borneo and Lemont, the river would be a mile wide nearly; 3/4 of a mile anyway sometimes. It might be 4 or 5 feet deep or 6 in the channel. The channel between Lemont and Borneo would be 30 or 40 feet wide. I have a good idea 1576 of what 30 or 40 feet would be. Of course where those places were, there likely would be islands. The channel was di- vided; part of it was on one side and part of it on the other. There were mostly flat stones in the river, a kind of limestone. They varied in size, sometimes as much as a man would want to lift. Sometimes they wouldn’t l)e any bigger than your hand. You could pass sometimes over the stones without getting your feet wet at all. 1 5 7 7 David L ayto n , a witness for defendant, testified as follows : Direct Examination. I live in West Linden avenue 112, in Joliet, Illinois. I have lived in the city proper for twenty-five years. Before that I lived u]) here in the Town of New Lenox. That is the last place I lived on farms, but I was raised out here about two miles from town. I was not born in Will County. I was nine years old when 1 came to lYill County. I was born in 1828. When I first came to Will County, I lived out here about two miles southeast of 1578 Joliet on a farm. My father managed the farm; we did not live there many years. My father did not own any land at that time, and we lived right round in the neighborhood. After that we lived on Deacon Scott’s farm near Joliet about 3 miles: lived there 2 years. 576 Layton, — Direct Exam. — Continued. After that we lived down here at Joliet Mounds in Will County. I have not lived in Will County continuously since I first came 1579 here. I was gone about 10 years — from 1869 to 1880, when I moved to western Missouri. AVith that exception I have lived here continuously. Part of the time I kept a grocery store in Joliet. Well, I ought to be familiar with the Desplaines Eiver. I have travelledi up and down it a good deal fishing and so on. Between ’37 and ’48 I was familiar with it. During those years I frequently was fishing in it, half a dozen times or so from the head of Lake Joliet up as far as Joliet. Sometimes I was up as far as Komeo. In 1837 I 1580 think there was a dam at the Haven saw mill. That was just below the Eock Island bridge. The Haven mill was between McDonough street bridge and the Eock Island bridge. That dam was sometimes known as the Malcolm dam, and sometimes the Adams dam. There was no way in which boats could go up and down from that dam. I cannot tell you when I first saw it, prob- ably 1840, the first that I remember seeing it. There was a dam at the Jefferson street bridge here in Joliet. In ’48 I think the Canal Commissioners built the dam. McKay had a small dam there; that is, in ^37, there was a small dam called the Mc- 1581 Kay dam, near the place which is now known as the Jefferson street dom. That dam which was built by the Canal Com- missioners is the dam known as Dam No. 2, and is not in existence now. There is no dam there. This street dam was built to make a basin, so that boats could come from the canal down there 1582 along the warehouse. The McKay dam was taken out of the river about 1842 or ’43. Then afterwards the state built a dam near the same site across the river. I cannot tell the year that was taken out. It was vdien the Drainage Canal started oper- ations. I cannot think of any other dam in the river at the time I first came to Joliet. The dam at Hyde’s mill was built after- L583 wards, I think. That is just about above the Jackson street bridge, about the place where the dam of the Economy Light & Power Company now is. I don’t remember the dam known as the Norman dam at Lockport. I know there was a dam, but I can- not say what kind it was there. There was an old mill just west of Lockport, but they had a temporary dam. It was not across the river either really. I was familiar with the river below Joliet. I think there was a dam at Treat’s Island. There was not a mill there while I knew it. I know that the dam was there, but the mill was gone. There was a dam this way down we used to call the Aqueduct, there was a dam there that was close to Dresden Heights. 1584 That is sometimes referred to as Beardstown. I saw that dam when I first came here. There was not a mill there at the time I was there. The mill had gone. It was not possible when I saw the dam for boats to go up through it and go down the river to it. I know there were rapids or riffles in the river. I cannot tell where all of them were exactly now. There was one below 1585 where they built the tinplate mill at the mouth of Hickory Creek. I walked across that many times. That is near the south limits of Joliet. I could not tell you the extent of those rapids in length. I have carried a boat round them several times, but I don’t know the distance. Q. Was it impossible to get the skiff through them! A. Not any time it wasn’t. There was another rapid at Brandon’s bridge at the head of Lake Joliet. The extent of these rapids in length was, I suppose, 20 rods. Q. Was it possible in ordinary seasons to navigate a boat over those rapids! A. Oh, no. Q. What other rapids do you recollect being in the river! A. Well, I cannot tell you exactly how many; there were several. Q. Do you remember of observing the rapids at Treat’s Island! A. Yes, sir. 1586 I have had occasion to cross there. It was not possible to navigate a boat over those rapids. That was 15 to 20 rods long. I don’t know the extent of the rapids at Smith’s bridge. I remember observing the rapids down at Beardstown. I don’t know how long they were, but I know they were very rapid. They ran pretty rapid across there when the water was up. It was not possible to navigate a boat over those rapids, either up or down. 578 Layton, — Direct Exam. — Continued. I remember that there were rapids above Joliet, but I cannot locate them just now just where they were, because I fished there years ago clear up as far as Eomeo in the deep places. I had 1587 occasion in my boyhood days to cross the river a great many times. The customary crossing was down below the mouth of the Hickory Creek, and another one down at what we call Bran- don’s bridge. There was regular wagon roads crossing the stream at this point. I don’t remember that there was any wagon road right in the City of Joliet crossing the stream. Q. Don’t you remember that there was a ford in the City of Joliet! (Objected to as leading and suggestive.) A. I don’t. There wasn’t much sediment up there in them days. 1588 In the flood seasons there was considerable water in the Desplaines Eiver. As to the normal condition of the river with respect to depth of water during the entire summer season, beginning with May 1st and ending we will say, October 1st, except- ing as I say the pool places, there was sometimes considerable water, but in these riffles and shallow places, there wasn’t any Avater at all hardly, just very little, excepting when there were freshets. These freshets would last 2 or 3 days, but the water would soon run down, because it was very rapid. It was not pos- sible to navigate a row boat up and down the rHer over those various rapids and riffles during the ordinary and normal state of the water at any time, excepting when there were freshets. It was not possible because the water ran so rapid. 1589 There were a good many rocks and boulders in the river at the point where these rapids were. As I say, I have walked across and not wet my feet at those places just below the mouth of Hickory Creek in summer time. Sometimes there was not over two inches of water in some of these rapids, and sometimes it would be more. It did not range much deeper than that. I have never seen any boats carrying freight or passengers, or used for commercial purposes navigating up and down the 1590 Desplaines EiA^er, at any place, at any time. I never heard of any being navigated. I never heard of any merchandise 579 or produce being transported up from the Illinois lliver. They used to haul merchandise by team from Ottawa to Joliet. It could not come up any further than Ottawa before the canal, and 1591 we used to go down there and bring it up by teams. Mer- chandise and produce between Chicago and Joliet was brought always by team. I hauled wheat up to Chicago when I was fifteen years old, in 1843. I hauled grain three or four times after that. I never brought back anytliing. Between 1837 and 1848, it was customary for farmers in this vicinty to get their grain or produce to the Chicago market by team. The road was not very good, — in same places, that 1592 is sure. It was swampy. My father came to Joliet in 1837 by team from Indiana. I saw at one time there was a wire fence across the Besplaines River below the mouth of Hickory Creek. That Avas about 1852, or 1853; I could not tell exactly the date. I saw it there 1593 one summer, — that is all. I was fishing down there. I don’t know how long it stayed there. I never saw any other fences across the river. When I went fishing, we put in our boat at the head of Lake Joliet generally, and we did not use the boat without it was to spear in the night. We kept the boat at home. We hauled the boat by team and put it in the stream at the near- est point to our home. When we came to the rapids or riffles we carted it around. We usually fished near here from the head of the lake. In fishing from the head of Lake Joliet to the City of Joliet we would have to carry our boat around the rapids three or four times. 1594 In some places there might be water, but it would be so swift that we could not row it up. In other places there would not be water enough. We usually fished about the middle of May. The water then would be a little higher than it would be in the later summer months. Q. So, as I understand you, the only place where you could navigate your boat properly was in the pools or ponds that oc- curred from place to place in the river. A. Yes, sir. I remember when the Kankakee Feeder was being con- 1595 structed, but I had not been down there yet at the time it was done. My home where I live, just south of Joliet was 580 about a mile. We lived less than that, but the last place we lived before my father died was mayhe one and a half miles. C ross-Examination. The roads from Joliet to Chicago were common prairie dirt roads, and in that early day people had not worked them much, so that it was just a road or path, or trail across the prairie; and in the condition that the prairie roads in this region were at that time, — sometimes good, sometimes bad. 1596 We never teamed any in the muddy times, — in the spring time. In the summer times the roads were pretty good. At the place where I spoke of crossing the river by stepping from stone to stone, the water might have been three or four inches, — maybe more. It would just run between the stones. It was not a foot. Wlien I did that, I can not recall the years; it was be- fore 1848. 1597 The fences that I spoke of was in 1852 or 1853, after the canal was built and in operation. We crossed that place below Hickory Creek, where the water was three or four inches deep from spring to fall. We lived below there. That was our regular road. The teams went there in the summer 1598 months. I don’t remember the condition in 1876. I was not here at that time. When the river was at high flood, it spread over considerable land down here. I could not tell you how wide it would be, — probably 80 rods, that would be one-fourth of a mile. I could not tell you how deep it was, because I never measured it. It might be- four or five feet. I did not measure it at high time, or low. 1599 The ford at Hickory Creek was a mile below the dam, — a mile down the river. There were no dams, except what you call Malcom and Haven Dams. 1600 Q. You said in your direct examination, did you not, and it is true also, is it not, that sometimes in places where you took your boat out and carried it around the rapids was because the current was so strong that you could not handle the boat in it? A. I said they could not handle the boat. Q. In the current. A. When the water was high. If the 581 boulders had been out of the way in the shallow places, you could not have taken your boat up in dry times. At such times the river might have been 10 rods, or 15 rods wide. I could not tell you exactly, because I never measured it. 1601 I don’t know for certain whether the fence I spoke about went clear across the river or not. I suppose it was put in to turn stock in it. It was the only fence I remember about. John P. King, 1602 a witness for defendant, testified as follows: Direct Examination. I have lived in Joliet; I have lived here 41 or 42 years. I have lived in Will County about 73 years, with the exception of 12 years, when I was in California. I came here in 1834. I was born in 1832. My parents came to Will County by means of a wagon and oxen from Indiana. 1603 Up to the time I was about 23 years old I was on a farm, farming, and after that I went to California and stayed twelve years, and when I came back, I went into the lumber busi- ness, and have been in the lumber business ever since, in and about the City of Joliet. I was 16 years old in 1848. The method before 1848 of transporting grain and produce and merchandise between Chicago and Joliet was by team only, till after they got the canal going. I didn’t know or hear of any grain being transported between Chicago and Joliet by boat on the Desplaines Eiver. Before 1848 I didn’t know or hear of any freight or merchandise being transported up and down the Desplaines River below Joliet by boat on the river. In the days before 1848 there was a good deal of merchandise brought 1604 up to LaSalle on the boat and from there hauled by teams. I never knew of any boat being navigated on the Illinois River up and down for commercial purposes before 1848 or after. I never heard of any such boat being operated or navigated on the Desplaines River at any time. I am familiar with the river. I had occasion to go on it and across it before 1848. The method before 1848, of crossing the river with teams, hauling loads was to cross the riffles. There was regular wagon roads crossing the river in those days. There was one down here at Brandon’s 582 King, — Direct Exam . — Continued. bridge. There was one at Treat’s Island. They crossed the island and forded the two streams. Part of the river goes down on one side and part on the other. There was a road across both of those channels. The farmers and everybody else who wanted to go across the river had to go that way. There was no other way. They crossed there at any time of the year except in high water. There was no other ford at Smith’s bridge. There 1606 is a regular wagon road across there. I don’t remember any other fords except here in Joliet before they got bridges. For a short time they forded the river in Joliet, bnt it was not a very good ford. They built a regular log bridge, — a cheap con- cern. There was a ford at Lockport that was commonly used by the farmers in hauling loads. I was on the Desplaines Kiver in a boat down in Lake Joliet. I have been along the Desplaines Elver above and below Joliet, but not in a boat. When the water was high on the river, it was generally too swift and dangerous for a boat, and if it was not, it was too low, — ^you could not get along. There were a few boats used on the river before 1848 for fishing and canoeing. Q. You are familiar, are you Mr. King, with the river, gen- erally speaking, from Lockport down to its mouth. A. Well, yes. I have been along it all the ways pretty much. During the summer seasons it was sometimes pretty low, and on the riffles if you would pick your steps you could cross on the stones. 1608 You could almost cross most of the time, and sometimes you could cross it dry-footed. The first of the rapids was this side of Brandon’s bridge, below the Jetferson street bridge. The rapids don’t start much until after you get pretty near out of the city limits of Joliet. I would not undertake to say exactly how long the rapids are at Treat’s Island, but I think they are a mile. The river down near the mouth is pretty rapid, • — that is near Beardstown, or what is known as Dresden Heights. Those rapids must run up one-half mile. There is a good swift fall from the head of Treat’s Island 1609 down to the mouth. I could not tell you how swiff the cur- rent is there, — is pretty swift. A skiff could not be navi- • gated below Treat’s Island. I have seen the river at flood stages when it would be very dangerous to cross it. It would not have 583 been possible in flood time to navigate a skiff or row boat in that part of the river above Lake Joliet, near and above Adams Dam. I saw that part of the river frequently before and after 1848. A skiff or row boat could not be navigated up that part of the river during flood season, because the water is 1610 too swift. If you wanted to take the chance of getting drowned, you could navigate a skiff down the river between those points during flood season; I would not want to do it. I was not so familiar with the river up above Joliet. Still, it had a good current in there when there was high water. I have seen the river when it was not possible to navigate a skiff; you would get out and pull it along between the rocks. Q. Well, I am taking the river at its usual stage, Mr. King, when there was no freshet on. Would it be possible at any time during the summer season to have navigated a boat? A. You mean all the time, when there was no freshet on? Q. Yes. A. Well, they might possibly go down some of the time, but not all the time. 1611 You might possibly float it down most of the time, but you could not get up very well. It was not possible during any time of the summer season to navigate a boat up and down the river for commercial purposes. I heard them say there was a dam at BeardstoTTu. I don’t remember personally. Before the canal was in operation in 1848, there was a dam here at Joliet. There was one at Malcolm’s mill. The Havens put in a dam there, they had a sawmill. That is called the Mal- colm Dam, sometimes the Haven Dam and sometimes the Adams Dam. Before 1848 there was a dam right here on the north side of Jefferson street. That was known as the McKee Dam. There was a dam where Jackson street now is in Joliet. I don’t know whether that was prior to 1848, or not. I don’t remember the existence of any dam in Joliet prior to 1848. I think there was a grist mill, below Lockport they had a dam there. I have seen fences in the river to let the stock drink. I think right below town there is a fence across the river between here and Brandon’s bridge. The fence was clear across the river. 584 That was when I was a boy. I don’t know how long it stayed there. I saw it often. It might have been there a good 1614 many years. I am not positive of that. The other fences that I remember were fences which the farmers built down into the river for a short distance, so as to prevent their cattle from wading around. If the river had ever been navigated by boats for commercial purposes, I think I would have known of it. There is no navi- gation in the river now for commercial purposes. Before 1848 I did have occasion to go to Chicago with grain. I hauled it by team. I never was up there very much myself. I might when I was just big enough to drive an extra team with a load, when my father would go. He used to haul his grain 1615 there and get supplies from there. The other farmers in Will County got their grain there the same way. That was the principal market for farmers in this vicinity. I did not ever hear of any grain being taken up to Chicago on the Desplaines Elver before 1848. There was a stage line running which brought passengers from Chicago to Joliet. They had a station here and it ran down as far as Peru or LaSalle. It ran only about three times a week. The name of that stage line was Frink and Walker. I didn’t ever hear of anybody coming down from Chicago 1616 to Joliet, and down the river from Joliet by boat. I don’t think anybody teamed it back and forth regularly carrying produce and merchandise for the farmers. Cross-Examination. When I spoke of crossing the river from May to October, I meant from the first of April up until the fall. The spring’ 1617 floods come in always along the last of March. The river would be at its lowest stage in May, June, July, Au- gust, September and October. The river is not generally pretty high in May. I have seen it in high water when you could 1618 not cross the river or ford it. It would be just as true to say that you can ford the river in low water, as to say you cannot ford it in high water. If it was too high, you could not ford the river. They used to ford the river when there were two, three or even three and a half feet of water at the fords. 585 In order for a river to be navigated for commercial purposes carrying freight and things, the water necessary would depend upon how heavy freighting you wanted to he done. If it was light you would not require much water. To conduct a commercial traffic on the river with boats, in order to make it profitable you ought to have a depth of three or four feet of water. Q. And when you have spoken about it not being possible to have commercial navigation on this river for want of 1619 water you meant because there were not at least three or four feet of water in the river! A. If it was rapids it would need a great deal more than three or four feet, and then it would not make navigation. Q. It would depend upon the character of the rapids! A. Yes, sir. Q. The other things that you had in mind were those rapids, and some boulders and stones in the river, was it not; the other things you meant would interfere with commercial traffic! A. Yes, sir. Re-direct Examination. When I could cross the river at the riffles or rapids without getting my feet very wet was perhaps two or three months in the driest part of the season. 1620 Probably five or six months of the year the river would be at such a stage of water that it would be impossible to navi- gate row boats up and down over the riffles without dragging the boats. Re-cross Examination. That five or six months includes the time when there was not * enough water on the one hand ; and then when there was too much, and the current too great. During five or six months of the year the water was not sufficient for that kind of navigafion. The other six months would include the winter when the water 1621 would be very low too. There would not be more than two or three months in the whole year when they could get over the rapids, and then they would have to take 'chances. What I 586 mean — the water would be Ioav at least nine months out of the year. Ordinarily the water over the rapids on those low places would be a foot or a foot and a half deep; and in some places three or four inches. 1622 Adam Comstock, a witness for defendant, testified as follows: Di rect Examination. My full name is Adam Comstock. I reside in Joliet. My par- ents came here in 1836. In 1837 they moved out onto a farm about five miles out, bordering on Lake Joliet. In 1841 they came back to Joliet and that has been my home since. I was horn in 1827. My business has been surveying and railroad engineering; have been in that business since about 1851. I commenced on the sur- vey of the Eock Island Eoad here. Afterwards I have been county surveyor and city engineer and city surveyor, and have been en- gaged on railroads in Wisconsin, Illinois, Kentucky, Mississippi, Arkansas, Missouri, Kansas and Colorado. MJien my par- 1623 ents first came to Joliet they came from Detroit with a team. I remember the days before 1848 there was a dam here we called the McKee dam. I recollect our fording the river just a little ways below the dam. From 1841 to 1848 I was very familiar with the Desplaines, used to go hunting down along the river and wade across it at different places. From here down to its mouth I was familiar with it, not so much above Joliet. Before 1848 I was not in business, only hunting took me along the river. I do not recollect going on the river in a boat prior to 1848, hunting or fishing. As to the depth of the water in the river between 1624 ’41 and ’48, I could wade across it without going over my boots. That would be in the latter part of the season, from the time ducks came along in September up to the time the river froze. May first the river would be high probably, the spring- freshet. It would last a long time, June, may be, that the water would be rather above the normal. Then from June to Novem- ber the usual normal condition with respect to the depth of water was about as I said. The water might be a little deeper along in the first part of the summer, would not get its lowest maybe till along after July. During the summer season the water over the rapids 587 and riffles would be less than a foot and a half. I am fam- 1625 iliar with the rapids and riffles in the river below Joliet. The first riffles were along about the islands below town, just below South street, before you get down to the head of the lake. Some part of the way it was more shallow and rapid than in other places. Practically the entire distance down to the head of Lake Joliet, about a mile, I would call rapids or riffles. West of the second island there was a slight ])ool for maybe seven or eight hundred feet, and then at the foot of a second island there was a sharp rapid there and then down where the first bridge is there was quite a sharp rapid. The last ])lace I mention is where Bran- don’s bridge now is; that is included within the mile of rapids that I speak of. Below these rapids was a rapid at the head of Treat’s Island and one at the foot, and one at the mouth of the DuPage. That at the head of Treat’s Island was not, I should judge, more than a thousand feet long. Then there was a pool along 1626 the middle of the island and at the lower end was a rapid perhaps 600 feet long. Below Treat’s Island, at the mouth of the DuPage, there was quite a sharp rapid, not very long, and then down at the mouth of the river there were rapids at the place sometimes called Dresden Heights and sometimes called Beards- town. I could not tell the extent of those rapids, about a mile, maybe. I could not tell the velocity over these various rapids below Joliet. Personally I know that from South street through to the head of the lake there was a 10-foot fall in about a little 1627 over a mile. I do not know what the fall is from below the head of Lake Joliet to the mouth. Personally I do not know anything about the fall of the river between Lake Joliet and its mouth. Q. Do you know from your personal observation that there was a considerable fall of the river from Lake Joliet to the mouth! A. Oh, yes; these rapids indicate that. 1628 Witness. The normal and usual condition of the river upon these various rapids, as to depth of water, was that it would vary from something like'a foot and a half to maybe six or eight feet. The foot and a half stage would prevail three-quarters of the year, probably; the remaining quarter the river would be flooded. When the water was a foot to a foot and a half over 588 Comstock, — Direct Exam. — Continued. these rapids, they would worry skiffs along over them by pulling them over the rapids going down. They would have a hard matter getting up. They might worry them along and they might have to push them along, or get out and pull them along. A skiff that could go into shallow water, they could probably row along 1629 right close to the edge of shore and keep within the current, and they would take their chances of going down in the high water. They would have to be pretty skillfully handled or they would be apt to capsize. A skiff I should say could come along up the river in high water and keep close to shore. I do not know of anybody rowing a skiff up the river from its mouth to Joliet dur- ing the high water season. I did not hear of anybody having done it or having taken a skiff down to the mouth during the high water season. There were not many skiffs or row boats in the river in 1848. There were not any boats used for other purposes than hunting and fishing and pleasure boats. I never knew of any boats used in the Desplaines Eiver for purposes of commerce such as carrying freight or passengers. I never heard of any such boats before 1848 or afterwards. Q. If there had been any such boats in existence here you would have known it! 1630 (Objection by counsel for complainant.) A. Most assuredly I would. It would have been a matter of general interest to people if there was any commercial naviga- tion on the river. I do not remember that in the early days of my experience I talked with old residents with reference to the previous condition of the river. I was acquainted with many old settlers, but do not remember ever discussing that subject with them. In my boyhood days there were bridges across the river, a couple of bridges built before 1840. I do not remember about them. That was when we were living on the farm. After that, there was a bridge built across at the little Island just below Jefferson street. The usual method of crossing the river in those days, prior to 1848, was fording or using these bridges. There were regular wagon roads across at the fording places. It was customary for the farmers to haul loads across. The canal 1631 was built along here about 1840. That shut off everything except where the bridges were. There was only one bridge 580 then, the one at the little island just below Jefferson street. There was a bridge across the canal right where the present bridge is. I do not remember about crossing the river previous to 1841. I do not remember crossing previous to 1848. There was a ford down at the head of the lake and there was a ford across Treat’s Island, another just below Treat’s Island, and one down not far below the county line where the old mill stood. I have crossed at all these fords. During the summer time at these fords the water would be a foot and a half or less. At Treat’s Island and at the islands below down and at the head of the lake I have waded across 1632 without getting my feet wet. There was a ford just below that we call Brandon’s bridge, right at the head of the lake, that used to be used before there was ever a bridge built. I re- member there was a dam in the river down near Beardstown, about a mile this way. I remember the old mill ; I have been down there when the old mill was standing, but I haven’t any recollection whether the dam was there then or not, or whether it had gone out. I saw a mill there that had been operated by means of water power. The mill and surroundings were in such condition that I knew a dam had been there. I think it must have been about 1847 or ’48 that I first saw that. I haven’t any recollection of the dam. My impression is that the ends of the dam showed where the dam had been. I was never informed when the dam was built. I have 1633 seen the abutments and ends of the dam. Q. And you know that there must have been a dam there on account of the mill 1 (Objection by counsel for complainant, on the ground that the question is leading.) A. Yes, sir; on account of the mill there must have been a dam. Witness. There was a dam across one branch of the river at Treat’s Island, then there was the Haven dam in town, and dam Yo. 2 and No. 1, the State dams. There was a dam at Lockport previous to 1848. I have seen the remains of an old mill near where the penitentiary now is, but it was not in operation. I do not remember any particulars about the dam. As to those dams that I do remember, those three dams in Joliet and the dam at Lockport, these were constructed clear across the river. It was 590 Comstock, — Direct Exam. — Continued. not possible for boats to go up and down tlirougii those dams. There was a lock here at Dam No. 1 after that was built ; that 1634 was not a lock into the canal, which crossed the river here. The canal and the river were together then. The canal and the river were the same above the dam and the canal and the river were together below the dam. That was down to Dam No. 2. There was no chance to get through No. 2 near the Haven dam. The water above No. 2 was turned into the canal. Before the canal commenced to operate in 1848 farmers got their produce to the Chicago market with teams. People traveling down this way came either by stage or their own teams. I do not know that consider- able merchandise in those days was brought from points on 1635 the Illinois Eiver up to Joliet. This stage line from Chicago must have gone down to LaSalle and there was a line to Springfield and St. Louis. It would not have been possible to operate boats for commercial purposes, carrying freight and mer- chandise or passengers up the river through these various rapids that I have mentioned, even if the dams were not there. They say jokingly about these little stern-wheel boats that they can run up on a heavy dew, but they could not one of them run up on these rapids. Produce was brought from away down beyond this, wheat I think. I have seen teams come along here that were said to have come from away down near Bloomington, going to Chicago. I never heard it claimed prior to 1848 that the Desplaines Elver was navigable in fact. I never knew of any commerce being car- ried on prior to 1848 over the Desplaines Elver by boat, and I haven’t Imown any since. The dam sometimes called the Adam dam, sometimes called the Haven dam and sometimes called the Malcolm dam, was constructed while we were on the farm, 1636 between 1837 and 1841. I do not know when the McKee dam was constructed; it was there when we came to town in 1836. I do not remember when that dam was taken out the river and Dam No. 2 was constructed by the State. Let’s see, the State failed some time along in the ’40s and the work was not finished. The canal l)anks were built through here in ’41 when we came back to town. I know the banks were finished and the dams, some of the masonry was not done until later on, 1845, ’6 and ’7. The dam was gone when we came back from the farm in 1841. I do not re- 591 member when the Kankakee feeder across the river near its inoutli was being' constructed. I do not know where they got stone to build the abutments for that feeder; do not know where they got the stone from that was used to build the Au Sable locks; I 1637 haven’t noticed the stone down there particularly. I never knew of any stone being transported down the river by boat for the construction of that feeder; there could not have been without my knowing it. The quarries that were used in building those locks and dams were situated above here in what they called North Joliet, above Dam No. 1, and if they had ever quarried those stone up at those quarries and hauled them clear down below Haven dam I would have known it. They couldn’t have hauled them down without my knowing it. The only stone quarries in Joliet at that time, before 1848, was above what is known as Dam No. 1, and there would be no way of getting that stone onto boats except by carrying them around the Adam dam. I know there was no stone taken from that Joliet quarry for use down the 1638 river. I have seen wires stretched across the river up above here about two miles and half ; it has been since the canal was opened. I do not remember but just one place where there was some wires. I do not remember whether that fence remained there for a long time or for a short time. The river bottom at the places where these rapids and riffles were that I have testified to was stony, gravel and boulders most generally. There were some large boulders. When I was engaged on the canal a party was sent to Chicago twice with a team. 1639 Cross-Examination. These dams that I have spoken about are the ones at Jack- son street and Jefferson street. Dam No. 1 and Dam No. 2. The Haven dam was a third of a mile down further. Those other dams are the ones about which I have spoken. Re-direct Examination. I noticed there was a strong current that passed over these rapids and riffles; that is all I can say. A stern- wheel steamer would be the smallest boat that could be used for commercial pur- poses, in my opinion, and I do not think it would be possible for 592 one of those stern-wheelers to get up that current in the river in high water. 'You could have got a flat boat up by doing what 1640 they call cordelling. Take a long rope up and hitch it to a tree and pull up on the rope. That would not be a com- mercial success. A man could not afford to do that for the money he could get. I have never heard of anybody trying to do that. Re-cross Examination. Cordelling is to take a long rope ahead and hitch it to a tree and then a lot of men on the boat pull on the rope. A rope ferry goes clear across the river and a pulley block hitched to it that they pull on. It has a j^ulley block that is put on the rope, and then there are two ropes, one here and one there, and a windlass in the middle, so they could turn that windlass and set the boat for one way, and when they want to put the boat the other way set it that way, and the current shoves it right across. I have seen in rope ferries where there was no windlass. This little wind- lass shortens one rope and lengthens the other. What they call cordelling is that they hitch one end of the rope to a boat and the other end to a tree up the river, and then move the boat by pulling the rope end over end. I have seen those stern- wheel boats on the Mississipi, not on the upper Mississippi, though. I 1643 never saw them on the rapids above St. Paul; I have seen them down at Cairo. The boats I saw there got along all right ; the current is not so strong there, I have seen these stern- wheel boats on the Mississippi that stuck so that they could not get up through the river on account of the current. I saw that at Rock Island, saw them stuck there for half an hour ; you could not hardly see them move, and they kept paddling away and they would go over the rapids; they Anally got over it. Going down the river where there is a rapid current with a stern-wheel boat, they 1644 could hold the boat back as well as they could push it through the heavy current. If there was power enough to push it through the current, then tiie same power would hold it from going down through the current, but that would not help it turn a corner. I do not think I could get one around. I was crossing Treat’s Island a day or two ago and I happened to notice just below the bridge that there was a quick turn there and the water run pretty near 593 straight across. I thought that was a place they could not handle a boat. 1645 Re-re-direct Examination. I think just above Brandon ^s bridge there was a pretty bad turn. I do not think of anything else on this subject. 1646 James C. Keen, a witness for defendant, testified as follows: Direct Examination. (Objection by counsel for complainant on the groimd that complainant had not been notified of the taking of this witness’ deposition.) My name is James C. Keen. I am living in Plainfield now, but T lived a great many years in this town. When T first came here T went there, came from Chicago to Plainfield. Plainfield is in "Will County, ten miles from here, between here and Aurora. I was born in ’24, came to Will County in ’43. I lived west awhile in Nebraska, about seventeen years. Lived in Will County from ’43 to ’85, then went to Nebraska for seventeen years. I was 1647 in Washington near Spokane about a year, that was a couple or three years ago. With these exceptions, I have lived in Will County all the time. I came here with my parents. We came to Buffalo by canal, took the boat from there to Chicago, then came by wagon from Chicago to Plainfield. We didn’t come down the Desplaines because we came the other way. We didn’t know any- thing about any Desplaines Kiver at that time. I first served my time at blacksmithing, then I went into gunmaking. I carried on gunmaking a good many years on Bluff street of this town. We came here in ’43 and I went back east after being here a year and was gone two years and came back here in ‘46. I left there and came to Joliet in ’50. From 1850 to about 1885 I have lived in Joliet. I don’t know as I am familiar with the Desplaines River. J have been up and down it a good deal hunting and fishing; 1648 been up and down it in row boats at different places, not so very much above, but I have below. I have hunted more through Joliet Lake and down through there. Never was much 594 Keen , — Direct Exa m . — Contin u ed. below the foot of the lake. We went afoot bunting deer and such tilings as that. Sometimes the water would be pretty low in the river, especially where there were what we call rapids or riffles, but in the lake there was always water until we got to the foot of the lake and after that it would be just the same I suppose as it was above, that is Lake Joliet. The north end of that lake would lie right here, just below the bridge that comes across the river, Brandon’s bridge, and then the lower end of the lake would be above Treat’s Island. In that lake there were places that 1649 didn’t know anything about any bottom at all down all the way through. The condition of the river as to depth of water would be that there would be times when there was plenty of water and then times there would not be so much. Most all the time it would be that there would be only a little water in the river over the rapids and riffles. Of course, there were times when there would be plenty of water, especially when we had our freshet. I don’t know that I could tell how much of the time during the year there would be floods and freshets, some years more than others, generally speak- ing there would be places when you could not float a boat as large as a skiff. There would be times again when the water would be very high. There would be three months out of the year when there would be quite a good deal in the stream. It would be in 1650 the summer that there would be a small amount of water in the dry parts, but, of course, in the winter and fall and spring there would be water. During the seasons of the year when there were no freshets the condition of the river as to depth of water would be that there would not be very much water. I have seen it when you could walk across the river below where the old Malcolm dam used to be, — you could go across on stones. That was onl}^ in the driest parts of the season. It might be possible in the normal and usual condition of the water when there were no floods ’and no freshets to navigate rowboats up the river over these riffles and rapids I have spoken of. You would have to pick your channed to do that. You couldn’t go any place in the river at that time. By going around you could possibly come up. The rapids there oppo- site Davidson (piarry you couldn’t row up it at all, you might pull up. 595 I have pushed a skiff up and down from the upper end of Lake Joliet to the Town of Joliet, had a man with me to paddle the boat. That is at the head of the lake. There was enough water in the river to get the boat up over the riffles. We pulled it up, 1651 couldn’t paddle it very well. I never went out when the river was not flooded, the water would be too rapid. It might have been possible to take a boat up the river during flood season, but I wouldn’t want to try it. There was no trouble about going down the riyer in flood season. I have gone down during flood season over the riffles and rapids. It might be dangerous, I never knew of any boat plying up and down the river for commercial purposes, never heard of any such boats being used or of any merchandise or produce being carried up the river on boats to Chicago. I never knew of any such 1652 boats being placed on the river. I have been down the river to the foot of the lake. I have been down to the mouth of the river upon the river, but I have never hunted down there. There was a dam in the river at the lower end of the lake at Treat’s Island. I think it was stone that was hauled in there mostly, but whether it washed out or how it went out I couldn’t tell. When I came to Joliet in 1850, there was a dam above in the river and that stone dam up there and the one at Jefferson street. The stone dam I refer to is the one now knowm as Dam. No. 1 where the Economy Light & Power Company is. There was a dam 1653 here at Jefferson street too. I don’t know whether there was any other dam in the river in 1850, or not. There was the Adams mill there, the old grist mill and saw mill, there was a dam there. Those dams stretched clear across the river. You couldn’t take boats up because there were no locks to lock them through. Just this side of Brandon’s road there were riffles and right oppo- site the bridge in the river, just as you strike the head of the lake, there was a little riffle there. There were stones in the river there, different kinds, what they call boulders, and they were on this rapids down opposite this Davidson quarry. 1654 I have crossed the river a great many times at that point. I have waded across. There was a road across. They used 596 to ford there. Didn’t haul very heavy loads. You couldn’t haul very much of a load up the river there very well. Prior to 1848, I couldn’t tell you much about how the farmers got their grain to market because I was in Plainfield. We got pro- duce and grain from Plainfield by wagon and team. During the summer season when we waded across these fords the water would be up to our knees or over sometimes. I should not think it was possible in those days to navigate a boat for com- mercial purposes up and down that river. I think there were fences stretched across the river, but I am not positive. 1655 Cross-Examination. These places where I say the water was up to my knees, where I waded across, that was on the rapids. I know the road that went down to where the grade is built opposite Davidson quarry at the head of the lake. It was cut up showing a good deal of travel. 1 656 I was in the office of Mr. Stevens here in the city day before yesterday. Q. Now at that time, did you make this statement or this in sub- stance. Did you say that you were now in your eighty-fourth year of age — ? A. I am. Q. Wait a minute. I want to read a little statement to you to see if you said it and I will let you know when I have finished. Did you say you were now in your eighty-fourth year of age, and that you came to this country in 1843 ; that you resided in the county continuously since that, except from 1885 to 1902 when you were in Nebraska ; that you were always fond of hunting and fishing and indulged in these sports at all seasons of the year and for many years after coming to the county; that you have been well ac- quainted with the Desplaines River, having been up and down it many times; and that without the least difficulty, except in the very driest season of the year, there were at least six months of each year when boats of good size would come up and down said river from what was known as Haven’s dam in Joliet to the mouth of the river, the only trouble being the swift water at times on the rapids at the foot of Lake Joliet; that you remember the old 1657 road leading from the canal near and opposite Davidson quarry to the head of said lake and that the same was deep rutted as though the same had been used for a long time and that heavy loads had been drawn over it; that said road ended at the west bank of said river at the head of Lake Joliet; that there was a stone quarry on the east side of said lake near the head where good stone was obtained at an early date and which may have been hauled to said river and loaded upon boats there ; that the bluff or bank up through said quarry and right east of it, — that no loads could be hauled up it in those days! A. I didn’t say no loads. The biggest part of that I didn’t say at all. Q. Wait a minute. What I want to ask you now is, did you say that or that in substance to Mr. Stevens day before yesterday, that being the 15th day of January, 1908, at his office in Joliet? Now answer! A. Now are you ready! Q. Yes. A. I didn’t say a good many of those things because T never knew anything about any road leading to the head of Lake Joliet. The head of the lake is some little ways below where the bridge is now, must be sixty or eighty rods, a quarter of a mile be- low the bridge. I never crossed any road except that road we used to ford there. There was an old wooden bridge at one time a great deal lower than the one is now and it was washed away, and it was built up higher, and put in a higher bridge. I said when you got on the east side of the river it would be almost impossible to haul much of a load before all those roads were fixed. 1658 Re-direct Examination. Any kind of boats would not be able to go up and down the river from what is known as the old Haven dam to the mouth of the river; might have a flat boat and go up and down. Until we got this water from the lake the river got very low; since this water has come in there would be water enough to run in between the Haven dam and the mouth of the river. As to the current 1 659 of the river I should say it would be very rapid. I have not been up and down any since the water came in ; I do not know of anybody having run up and down. 598 1660 Enos Field, a witness for defendant, testified as follows : Direct Examination. (Objection by counsel for complainant on ground that notice of the taking of the deposition of this witness has not been given complainant.) I live at 223 Gold street in Joliet; have lived here two years this last time ; lived in Joliet before that, in 1871 to 1880. I came to the State of Illinois in 1847 ; landed at Ottawa. Between Ottawa and here I have been the balance of my life, except one year in Kansas. I was bom in 1834. I came to Ottawa by boat. I was ])orn on the other side of the Catskill Mountains in New York. In 1837 my father moved from there to Ohio. We canalled from Al- bany to Buffalo; from Buffalo came across the lake to Cleveland, and from Cleveland to Columbus. We went there in 1844 and went to Portsmouth, Ohio; from there we went down on the Ohio Eiver to Cincinnati. I stayed there for three years and learned a trade and I started from there in the fall of 1847 and came to Ot- 1661 tawa by boat, all excepting from Peru. We got off at Peru. They were teaming from LaSalle through to Chicago any- where you wanted to go. I did not come by Chicago to Ottawa. I have followed the I. & M. Canal from 1854 up to ^81 ; was employed on the canal. After ’81 I ran a saloon down in Wilmington 11 years ; that is on the Kankakee Elver. Then I went to Morris and put in an electric light plant down there and ran that for eight years, and lived there without doing anything only fishing. Dur- ing the time I was employed on the canal I was boating up and down, carrying grain. I ran two or three years from Seneca on what they called the Northern Transportation boats. They ran through from Chicago to St. Louis. Have been as far as Nashville, Tenn. Took boats down the canal from Chicago into the Illinois Eiver and back up again. I was up the Cumberland Eiver 1662 to Nashville in 1864. In those }^ears I became familiar with the Desplaines Eiver, no more than to see it as we went by; never traveled it. Since I quit boating I did not fish in this river; it was too muddy. I did not see it any more between ’47 and ’51 than to see fellows catching fish while I was going along. I had o]iportunity to observe the river between here and Brandon’s 599 bridge, going up and down. In 1849, the time they were going to California, there were five steamboats loaded at Ottawa. They fetched up a hogshead of sugar, coffee and such stuff, unloaded it there. There was one boat went to Marseilles. At that time there was a dam at Marseilles. They could not go any further. There is no doubt in my mind there was water enough to boat then to the Kankakee. I do not know as there was any freight brought 1663 up to Chicago from Marseilles. There were teamsters run- ning from Peru, which was considered the head of naviga- tion, and in fact when I landed there we put our freight in a wagon and came up to Ottawa with it, and there were teams there to go wherever you wanted. Some of them would take passengers through to Chicago and some were going down. I could not say anything about whether it was a frequent thing to send merchan- dise from the Illinois River by means of teams prior to 1849. Grain that was raised there, we got up to Chicago either that way or send- ing it to Peru, going down to IJtica. That was considered the head of navigation at that time. Boats used to come up from Utica and take wheat from there. I never heard of any produce or freight or grain coming up the Desplaines River to Chicago or from any point on the Desplaines River, or of any boats transport- ing merchandise or freight of any kind down the Desplaines to Chicago or from any point on the Desplaines. I will give a little history. Up here from Summit this is what I have seen. 1664 The river up there run both ways in high water. Old Ogden up there in Chicago dug a ditch; it was called the Ogden Ditch. I suppose this drainage ditch has that from Bridgeport down, and he dug it into the Desplaines River. That brought the water from the Desplaines down, and the State made him put a dam in there because the high water wmuld run it right out into the lake. It was for boats going. I never saw even a skitf in the Desplaines River. There was a dam where this trouble dam is, an old dam. I can give you a little history on that. That dam must have been put in in 1833. There was a man here by the name of Beard, two of them. They laid out a town there and the old man and his wife died the same day in 1847, but they have a nephew that is out in Michigan here; he was telling me about this. He told me, this nephew, that his uncles were offered $40,000 for their right in 600 Field, — Direct Exam. — Continued. point in there, for the mill and all. I don^t know what the mill was. There was nothing bnt a flume there when I commenced boating- in 1854, but the old dam is there, part of it. The appearance of that old dam was there in ’54. 1665 (Motion by counsel for complainant to exclude the answer of the witness because it was manifestly hearsay.) I got this pretty straight from a nephew; his mother was a sister; she died down in Morris 102 years old. They called the nephew Doc McKeon. I don’t know where he lives in Michigan. He has got a son down in Morris married to Storey Madison’s daughter. I guess I have seen the rapids in the river below Joliet, sometimes observed the stage of water in the river. We were always looking over there as we were going down the canal, from there down to Brandon’s bridge. Sometimes the turtles took the catfish over from one depot to another; it was terribly low; the Kankakee was bigger than this; I have seen the Kankakee you could 1666 cross it without getting your feet wet and have a pair of shoes on. Generally speaking, the result of my observation during all the years I was in this vicinity is that it has been very low. There used to be a guard lock here and they would open all the gates and go right through. There was not water enough to supply the canal. They have a feeder up at Sag Bridge and a feeder down at Lemont from the Calumet Diver. . It was not possible to navigate boats up and down the river at any time that I know of. I heard of a boat down here two or three years ago, three fellows going down fishing. They came down by Morris, floating. They were drowned down below here, in the lake ; the boat was sunk or something. They found it sticking in the mud. There was one or two of them could swim good, but they never knew they were drowned until they were catched down at Morris. It was only ^ 667 a few years ago. The Drainage was in then. There was a dam down here in the river when I first came, one on Jefferson street and one up there, the old Haven Dam, and one where the Economy Light & Power Company is now. I don’t remember there being a dam at Treat’s Island. I see a dam up at Lockpoit, this side of Lockport ; Korton had it in there. I nevei paid anv attention to it. I saw there was a dam there, that was all. ^e\ei had occasion to ford the river at all. I think I have seen a stake- GOl and-rail fence np here between here and Lockport. It ran pretty nearly, across the river. C ross-Exa mm a ti on. 1668 Thirty inches of water would he recjuired to navigate a boat say 10 feet wide by 30 feet long carrying say hve tons of freight, with a flat bottom; if she is built out of oak will draw 30 inches of water, and when made of pine wall draw about 26 or 24. We calculated the carrying about a little over 100 bushels of corn to the inch. We drew 4 feet 8 inches of water. I don’t know of any rule for calculating the carrying capacity of a boat. I do not know whether it is the rule or not that the capacity of a flat bot- tomed boat drawing a foot and a half of water is 90 pounds to the square inch. We used to carry a little over 100 bushels to the 1669 inch. Our boats were 100 feet long by 174 feet wide. The canal boats I operated were 100 feet long and 18 feet wide on deck. 1670 They would carry 6,200 bushels. The boats would draw 4 feet 8 inches of water. I will take my oath they gave us 4 feet 8 inches of water in the canal. There was 4 feet 4 one time and one time they didn’t measure it at all. That load would carry on 4 feet 8 inches of wmter on the sized boat I have mentioned. 1671 Urias Bowers, a witness for defendant, testified as follows: (Objection by counsel for complainant on the ground that notice of the taking of his deposition had not been served on complainant.) My name is Urias Bowers; I live in eloliet. The last time I have lived here a little over a year. I have made Joliet my home ever since 1844, but I have been away occasionally a whole summer. First came to Will County in 1844, in May. I was horn in 1833; was about 11 years old when I came; have lived here in Joliet except for the absences mentioned. Have followed the water for a living most of my lifetime. My business was mostly boating along the river and canal, along the I. & M. Canal and along the 1672 Illinois Eiver. I have made a good many trips along the Illinois Eiver from Chicago to St. Louis. I won’t undertake G02 Bowers, — Direct Exam. — Continued. to say how many, but for 40 years. I had charge of canal boats plying up and down the canal. The first boat I had charge of was in ’69 — ’60 I think it was, spring of ’60. Before that I was em- ployed on the canal; I did a little on it in 1849. In ’50 and ’51 I was main hand on deck; after ’60 had charge of a boat myself. I ran a boat a conple of years after the Chicago fire, I think about ’73. Since ’73 have run boats on the Illinois Eiver; used to go from Chicago to St. Louis on canal boats; carry lumber and flour 1673 back. Since I left the canal in about ’73 I tended lock eight years, Lock 10 and Lock 12 on the I. & M. Canal — both at Alarseilles, two locks close together. After I quit tending lock I came up here and went out on a little farm out of town here about two miles and a half. Have been there ever since until a year ago last fall. I am familiar with the Desplaines Eiver as much as I am along the canal; it runs right along the canal pretty much all the way from Chicago to the head of the Illinois Eiver; we could see it most all the way down. There are very few places you could not see the river from the canal from Chicago down to the head of the Illinois Eiver. I never was fishing or hunting much 1674 along the river. I never made it my business to go along the canal to examine the water in the river. I have been along the shores at different places, on and off. Have fished in the Illinois Eiver and some in the Desplaines Eiver, and some in the Kanka- kee Eiver, but not much in the Desplaines. From here down two or three miles as far as Treat’s Island, my father used to do a good deal of fishing. I used to go with him when I was a boy. I could tell you more about the quantity of water that went over these dams than about the condition of the river as to depth of water in general before 1848. I have seen the water over this Jefferson street dam here when it varied from an inch to two feet in a season. I have seen two feet of water on that dam and I have seen it when the water did not run over it at all. As far as I have had any 1675 experience we always had less water in the summer time. We would have a freshet in the spring. Dry seasons we had scarcity of water most all the time on the canal. We used to have factories in Joliet that got their water out of the canal. When the water got scarce they used to shut down. I remember lots of times it used to l)e a rule that when these mills run until the water quit 603 running over, the dams, then they were shut down. There was no water to spare for them only what the canal wanted to use to keep its regular stage of water. I remember the Jefferson Street Dam down here when I first came, in 1844. I remember that the dam built before the present Jefferson Street Dam ran cater-cornered across the channel from northeast to southwest. I never saw the dam because it was always covered with water, but I have seen the shape of it when they dug out the Drainage Channel. I 1676 have been aground on the dam with a canal boat. When I first came here there was no dam where Dam No. 1, the pres- ent Economy Light & Power Company's Dam is. They commenced building that in ‘45 or ’46 I think. I was employed on the con- struction of that dam; carried grub around for. the boys. I was what they called “grub boy.” There was a dam below here called Malcolm’s or Haven’s Dam when I first came, in 1844; that is quite a little ways this side of McDonough street; that dam was clear across the river; so was the Jefferson Street Dam. No boat could go up either one of these dams. There was no lock in the old Adam Dam. There was a space over on the west side of that dam 1677 that was probably 12 feet wide, built out of stone, where they planked up in there to keep the water from running through, probably put there to put a wall some day. No boats could get over these dams up stream. They might have gone down in high water over the dam. I never saw anything of that kind. I never knew of any boats navigating the Desplaines Elver, carrying freight and merchandise or passengers from Joliet down to its mouth; never heard of any; never knew of anything more than a 1678 skiff or something like that navigating the part of the Des- plaines Eiver above the point where the canal comes in. Never heard or knew of any boats on the Desplaines Eiver used for com- mercial purposes. When I first came to Will County in 1844, both freight and passenger traffic was conducted by teams; carried passengers with teams and hauled out stone from here to Chicago by wagon. Farmers would take their grain to Chicago by teams. My father made it a business of teaming between here and Chi- cago. I have seen as high as a hundred teams between Lockport and Chicago, along about 1845 and ’46. I used to go with my father with a team. We used to mostly haul merchandise from Chicago G04 Boivers, — Direct Exam. — Continued. ^ here, and passengers. Father used to carry passengers from here to Chicago for a dollar; start from here in the morning and guar- antee them to get to Chicago so as to get an evening boat to go out on the lake; if he didn’t get them there he didn’t charge them. Father came from Ohio here by team. Some places I had occasion to observe the rapids and ripples in the Desplaines Eiver. We used to ford the river down at the Kankakee where father lived, just below the aqueduct, down where Beard’s Dam was. His farm was on the west side of the river, down near Beard’s Dam. 1680 That was not when I first came to this part of the country. Father lived here over 20 years before he went down there. There was a place there that we always called Beard’s Dam, the -boys that were younger than I ; I have been there with them fishing. They would say, ‘‘Let’s go down to the dam.” There was part of the old timbers sticking out of the water. There was no remnant of an old mill that I ever saw. I do not know when I v^^as first down there where Beard’s Dam was; I could not tell. I commenced boat- ing down there along in the ’60s. Q. Did you ever hear that there was at one time a dam clear across the river known as Beard’s Dam, and also a mill there! (Objected by counsel for complainant.) A. AVell, I have heard that but I never saw the mill. Q. And the evidence down there showed you when you were there that there had been a dam there at one time! (Objection by counsel for complainant to the question as leading and suggestive.) A. Oh, yes, there had been a dam there; I did not hear when that was first constructed. Q Xow, from your experience along the Desplaines Eiver was it ever possible to navigate up and down that river for purposes of commerce ! (Objection by counsel for complainant.) A. Xo, I don’t think it was; I know it was not. You might take a boat down but I do not see how it would ever be possible to get it up. Q. You couldn’t take a very large boat, could you! G05 (Objection by counsel for complainant to the cpiestion as leading and suggestive.) A. Well, I don’t know; there has been water enough to carry a pretty good sized boat, but then that was only just in freshets in the spring time. Witness. I should think it would be dangerous to take a l)oat down, a boat that had any kind of freight on it that was dam- ageable; I never heard of its being done; never saw a boat that carried anything up and down the river, anything that was carried for any purposes, as grain and lumber. I have seen 1682 small boats go down the river, fishing and hunting and trapping and such things; but they seldom came up. I re- member once myself and two fellows took a skiff and went down the canal from here to Channahon. There we put it into the Du Page Eiver and went down into the Desplaines as far as tlie aqueduct. Then we pulled her out and went over to Goose Lake, hunting. We had to drag the skiff over the rapids going down. I only remember one place, that was right after we got her out of the canal; close to where the Du Page enters into the Des- plaines, there was quite a rapids there, about a quarter of a mile below Channahon. We put the skiff back into the canal; could not have got it back up the river because there was a 1683 good many rapids along the river, and we knew them, and rather pull her over the rapids we might as well walk back, because we would have to walk back over half the way anyway. So we put her into the canal and came back that way. I never that I know of saw any fences across the Desplaines River. I have seen them fence into the water 10 or 12 feet to keep cattle from going from one man’s land to the other where they had pas- ture, but don’t remember seeing any fences stretched clear across. It was along about 1858 or ’9 that I was in the skiff with the two other people, fishing, and took the boat back by way of the canal. 606 Oliver S. Chamberlix^ 1684 called as a witness on behalf of the defendant, testified as follows : My name is Oliver S. Chamberlin. (The testimony of this witness was objected to because complainant had no notice of his intended examination.) I live at 1112 Cass street on the bank of Spring street here in Joliet. I have lived here about 12 years. I lived in Will County 7 years at the 12-mile Grove, and then I lived in Cook County 7 years at Blue Island and I lived 18 years up on the farm and about 12 years here. The farm where I lived 18 years was about 5 miles and a half east on Maple street in Will County. I first came to this part of the country in tlie fall of 1837, and 1685 have lived at these -various places ever since. I have not been away from this general country here. I was born in 1825. I did not come by the way of Chicago ; we came around the Lakes. I was about 12 years old when I arrived here; it was 1837 when I first came to Will County. I did not become so very familiar with the Desplaines Eiver in the years between 1837 and 1848. I remember seeing how it looked down here be- low the town, and up beside the Sanger farm towards Lockport. I had some horses on the Sanger farm, and I used to no- 1686 tice the river along there. As to the usual depth of water along there, at the southern part of the Sanger farm, it was not deep. It ran pretty lively and a little deeper on up. I do not know that I ever went into it with a skiff, or measured it for anything. The Sanger farm is up above Joliet some distance; I guess about three miles. I liad in those years, occasion to observe the river down below the Town of Joliet. I can remember coming down to the Davidson (piarry, and I could look off into the river where it was pretty wide and pretty shallow. I did not have occasion to see the river very frequently during different seasons of the year, at those points. I could not point out where the rapids were in the river so very jiarticularly. I have been along the river a little sometimes when I was going to Channahon. I never tried to go down the 607 river in a boat. I guess I have seen skiffs on tlie river; I 1686 have not seen them very frequently. Whether or not skiffs were used much on the river, when I first came down here, I do not know much about it. I did not stay but a few days in town. Then we went up to the 12-mile Grove, and then I didn’t get here very often; onjy in the winter, I came down and went to school. 1687 I don’t know how the farmers got their grain to market between 1837 and 1844. I guess they must have drawn it up. About 1846, I guess, I know I was down to visit my brother- in-law that lived at the club-house; that is a little east of this old, stone school-house. He said he wished he had a load of grain hauled up to Chicago, and I said that I would take it for him. I took it by Blue Island, with a team. I suppose that people who traveled between Chicago and Joliet, and that merchandise and freight, were carried by means of teams. I am satisfied as well as I can be that they did. I never heard of any boats bringing merchandise or produce, or freight of any kind, down the river from Joliet until the canal boats commenced to operate. I never heard of any boats being navigated upon the Desplaines 1688 Elver at any time for the purpose of commerce. I never heard of it at any place on the river. I never saw any such thing. I do not recollect of having seen any fences built across the river. No cross-examination. Seneca Hammond, called as a witness on behalf of defendant, testified as follows: Direct Exam mat ion. (The testimony of this witness objected to on the ground that complainant had had no notice of the intended examina- tion.) My name is Seneca Hammond. I live in Joliet. I came here in 1849, by the way of Chicago. I came from Chicago to Joliet on a canal boat. I was born in 1837, and have lived here in Joliet and vicinity ever since 1849. My business has always been a farmer, up to within a few 1690 years. My farm was right east of Joliet on Maple street (road we call it) about 4 miles; that would be 4 miles from 608 Hammond, — Direct Exam. — Continued. the river. I had occasion to transport farm produce or grain to the Chicago market. It was always done by boat on the canal. After I arrived here, the Desplaines Eiver was always our fish- ing ground. I always went there fishing; that was all the sport we had those days — fishing; I went once or twice a year; we used to fish down below Joliet here where the Hickory Creek empties into the river; we used to fish there, and also from Joliet up to Lockport and through there. I never was down the river below Hickory Creek, above Lockport. We used to go near 1691 Komeo. I have only been along the Desplaines Eiver be- low Hickory Creek by wagon road. I have not seen the river much below Hickory Creek. It was our custom to go fish- ing about May. We calculated to go when it was not very high. We had to fish with a seine; do wading; we generally found where we always waded. I went where I could find holes in the river and seined for fish in these holes. I have had a boat which we drove down to the bank with a wagon, and then waded out into the stream and used our seine. I never saw skiffs or boats 1692 going up or down the river at any time. I, myself, never used a boat on the river. I never heard of any other kind of a boat going up or down the river, nor did I ever see any. I never heard of any boats used for commercial purposes going up or down the river at any time in my life. Q. From your observation of the river at the points where you have fished it, what do you say as to whether it would be pos- sible, or whether it would have been possible to navigate the river by any kind of boats? (Objected to on the ground that the witness has disquali- fied himself from answering the question.) A. Well, as far as I know, I do not think they could. I saw the river at these points where I was fishing. 1693 Q. Were there points in the river that even a skiff would have to he dragged over rapids and riffles? (Objected to, as leading and suggestive.) A. Yes, sir. Q. Would it have been possible, in your judgment, to have taken skiffs up or down the river, over the rapids that you ol)- served, when you were fishing there in the early days? (Objected to on the ground that the witness has not said that he has seen any rapids.) A. Why, it would be possible, yes sir. But not without dragging it. You would have to drag it over riffles, in my experience. I have seen the river in times of high water. It would have been possible to have navigated boats up or down during these times over the rapids I obser\^ed in the river, but I should hate to have been in it. I think it would have been dangerous to go down the rapids. The current wmuld be very swift. I do not think it would be possible to have rowed 1694 a boat up those rapids in high water; the current was too swift. I don’t think it would have been possible to have taken boats used for commercial purposes either up or down the river during the times of high water. I never heard of it being done. In the early days I didn’t observe that any fence was built across the river. I saw one up here at the penitentiary when the penitentiary was built there. It was a ware fence. The parties that owned the land on the other side, built the fence there. I saw that fence about 1863 or ’64, somewhere along there. That fence was a mile or two north up the river from Joliet, right beside the upper lake. I saw that fence there more than once. I climbed over there a good many times. That fence remained there within my knowledge 3 or 4 years. I don’t know whether it was ever re- moved or not. I could not say. I don’t know whether it has ever been taken away or not. 1695 Cross-Examination, I have rowed a skiff on the river from the lock down as far as Joliet; I mean the twin locks up there. They must be nearly a mile up the river from Joliet. I rowed a skiff down only once; I was hunting ducks in there. The little experience that I have had does not enable me to know very much about what can be done with a skiff on a river. I do not pretend to have very 1696 much knowledge about what can be done with a skiff. I did not say that I helped drag a skiff over the rapids. If a skiff were taken over certain rapids that I saw, it would have to be dragged over. 610 Peter O’Brien^ 1697 a witness on behalf of defendant, testified as follows: D i rect Exami n a ti on . (Counsel for complainant objected to the examination of the witness on the gToimd that they had not been previously served with notice.) My name is Peter O’Brien. I was 75 years old the 29th day of last June. I lived at 806 Northeastern avenue. I have lived in the city or vicinity of Joliet and Desplaines River fifty- three or fifty-four years. When I first came here I was steward and porter on these packets that ran from Chicago to LaSalle. I raised a company here as 2nd Lieutenant and went 1698 to the war and resigned. I was nine months in and re- signed. After that I fished and hunted, trapped and so on. My business to-day is just trapping. I ain’t trapping now, but I am waiting for the water to get so I can trap. I trap every winter and fall; 7 miles south here; Jake Schweitzer, that is on the Desplaines River. My trapping and hunting and fishing has generally been confined to a territory along the Desplaines River and adjacent to it. I have seen the Desplaines River in all seasons of the year. It has been very low. I have waded along from Malcolm’s mill way down to Brandon’s bridge, and be- 1699 low that 40 or 50 rods. In that territory from Malcolm’s mill to Brandon’s bridge, I should say there was from 6 to 8 feet of a fall. Quite a current from Malcolm’s down to — way down to where we call the lake; that is, the head of Lake Joliet; that is in the neighborhood of three or four miles from the court-house. I have never seen any freight boats plying up and down the Desplaines River, excepting a canoe or a skiff tak- ing provisions down to camp for a week or so; never heard of a freight boat going up or down the Desplaines River carrying merchandise. As to whether it is possible for a row boat to come up the Desplaines River in any season of the year, from the mouth of the river to Malcolm’s mill, sometimes you would have a good deal of poling and avoiding these big, hard heads 1700 to get up when there was any kind of a current. They poled up small boats from the mouth of the Desplaines River to^ Malcolm mill. They poled up and worked with the oars. [ don’t GIT know whether they were able to get their l)oat up through the rapids, without getting out of the boat, or not. I myself, even, had to get out to come around the edge of the abutments, be- fore Brandon’s bridge was built, in order to get up that heavy current. I would fake my boat down to where the current was not as swift, and give her a good shove, so I could go around the piers; around the abutments. I might ])ull my boat out of the water, once in a while. I never rowed or poled a boat from Brandon’s bridge to Malcolm mill. I could not, because there is not water enough and when there was water enough, I could not get up against that current. 1701 If a boat were going down the Desplaines Eiver in times of high water, it would be likely to strike one of these hard heads. All you can see of them when it is high water is a kind of a little riffle or current around them. I often went down the Desplaines Biver in times of high Avater from Malcolm mill. I went in a small boat, but I would go down backwards, so as to avoid those hard heads. I Avould sit right where I rowed from and turn my boat around, turning the bow doAvnwards — back- wards, and row backwards. I would not roAv, I would let her go down with the current and a\mid those stones. I have seen fences across the Desplaines Ewer. Mr. Adler had a fence there, down below Malcolm’s, so the cattle would not get in the opposite place of Mr. Davidson, the old fellow who owns the quarry. The fence went clear across the river. I 1702 don’t remember whether there was more than one of them. I saw it pretty often. A freshet would generally take it out, once in a while. It would start in at Hickory Creek, where Adler’s pasture used to be, and then cross over so it would not strike Davidson’s place. They would get in any way, once in a while, and they would have to drive them out. There was a wire fence along the shore, from about south of Hickory, down, you might say, maybe 80 or 100 rods. I am pretty certain of that. 1703 As to the dams on the Desplaines Eiver I remember Mal- colm’s Dam and then the Jefferson Street Dam and then Number 1 at Jackson street, where the present dam is now. 612 I knew of a dam at Treat’s Island. I used to go out 1704 and wade out to where — a little above this dam. There used to be an old — kind of big logs and so on across this place; a little kind of east of Treat’s Island, and I think it was for the purpose of getting water into the mill that they had a sawmill down at the lower end of this little runway; I think that was what it was for. There used to he a dam, an old dam, in the vicinity of the mouth of the Desplaines Eiver, a good deal like the dam that was there at Treat’s Island. That dam was clear across the river. C ross-Examination. The trapping that I did was done in the winter and fall, — the fall and spring. The reason I could not take my row boat up the river was because of the swift current. At any time 1705 when I waded in the river, it was in warm weather, in the summer time; that was the season of the year when the river was lowest. I should say it was all of a quarter of a mile over from the dam here in Joliet, at Jackson street, to Malcolm’s mill. There were rapids in the river below Malcolm’s Dam, but not above the dam. I don’t think where I waded, I could drown very easily. In some places it was 5 or 6 inches deep and in more IDlaces it was maybe two or three feet. The dam that I spoke of at Treat’s Island I think was put in to have some of the water pass by the sawmill that was there. 1706 There are three channels. There is one on the west side of Treat’s Island, and then there is one betwixt the main island, large island, that the race-way goes down to the mill, and tlien the biggest is on the east side. This portion of the river where the dam was, was not very narrow. There was quite a stream on the east side of it. It might have been as wide as a good sized road; it might have been 5 or 6 rods wide. The size of the stream on the other side of the island was about the same. Mr. Adler had a fence across through it, one time; it was just a wire or two wires stretched across; there might have been only two or three wires for that matter. I didn’t pay much attention to it, but I know there was a wire there, and that it broke when there was a freshet in the spring of the year; it would generally 613 break it. The purpose of this fence was to keep cattle from going over to Mr. Davidson’s. I think that was what the point was. Davidson used to have a big lot of quarry stone put on end for a fence in one part of his field. This fencing was to keep cattle from going from one man’s field around to another. I only remember the one fence that was across the river. 1708 Fkanklix Collins^ a witness on behalf of defendant, testified as follows: Direct Examination. (Counsel for complainant objected to the examination of this witness, on the ground that no notice had been previ- ously served.) My name is Franklin Collins. I live at 201 Baker avenue, Joliet. I came to Will County with my x^arents in the fall of 1833. I was about three years and a half old. My first knowl- edge of the Desplaines Eiver was in 1837 or ’38. The dam at Lockport pertaining to the Daggett mill was either in process of construction or constructed at that time. There was a dam across the river down here a little above the old Jefferson street 1709 bridge. I think it extended across the river. I suppose there was a grist-mill in connection with that dam. I never was in the building; that is the dam known as the McKee Dam. As to whether or not there were any other dams in the river x^rior to 1848, I could not swear as to the date that the Havens boys Xout in a dam down below there for the x^niq^ose of a sawmill. I never saw boats carrying freight or merchandise down the Desplaines Kiver, nor did I ever hear from anyone whom I regarded as a reliable source of information, that boats carrying freight and merchandise plyed up and down the Des- plaines Eiver. There were some places in the river where it was easily forded at almost any time, and then there were other places where you could drive right across the river. I never forded the river 1710 at all, later years. I think the first time was about 1840, ’41 or ’42. At that time I forded it at Loclq3ort. I don’t think I ever forded it at any other x^lace, before the opening of the Illinois and Michigan Canal. The ordinary condition of the river as to quantity and depth of water was very little in 614 quantity; in depth, it varied very nineh, from nothing to, maybe in places, two feet, perhaps. There would he a series of holes and shallows clear across the river; also up and down the river. I have seen row boats going up and down the river for short dis- tances. There were places where a row boat could run a few rods, and in some places I should say half a mile. When they got to the limit of row boat flotation, if they wanted to continue, they would have to carry the boat over — make a portage. There were not many row boats on the river ; they were owned for pur- poses of pleasure. I never heard of a boat being owned on the Desplaines Eiver for the purpose of commerce. When we came here, we came by wagon from Eochester, N. Y. We came around through Indiana. We crossed the river at Detroit, and the rest of the way through Indiana and those adjacent’ states that we had to touch. I frequently had occasion to go to Chicago before the opening of the Illinois and Michigan Canal. At first we 1712 used to use ox teams, and soon branched off into horse teams. There was no other way of getting produce to Chi- cago and getting supplies from Chicago, excepting teams at that time. There were teams in the summer, when the roads were very good; later in the fall and early in the spring, they were very bad. It was almost impossible to get through with a rea- sonable sized load. Before the opening of the canal, there would usually be a good many teams going to and from Chicago. There was a stage line running from Chicago down through this country; it was called Frink & Walker. I don’t know its real southern terminus; it ran from Chicago south and southwest. 1713 There have been fences across the river north of here; south of here I am not well posted. Those fences north of here extended clear across the river. They used to have a swing- gate, or what they called a swing-gate in some places ; they were not all alike. I don’t know whether or not the Daggett Dam ex- tended clear across the river. Q. In view of the difficulties of transporting merchandise and siqqfiies to and from Chicago, if it had been possible to have used the Des})laines Eiver, would it have been used, in your opinion? (Objected to, as leading and improper.) A. Most emphatically. In my opinion the only reason the Desplaines liiver was not used, was because it was not capable of bein^ used. C ross-Exam h lation. 1714 I will be 78 years old the 19th day of A])ril. I came to this country in 1833, as a child, with my ])arents. When I first came to Will County, we lived in what is now called the Town of Homan. We lived there most of the time until 1870. I live 5 miles from the Desplaines River, at a place that is northeast of the City of Joliet; I would call it a distance of about 9 miles. A¥e call the distance to Chicago 32 miles; that is, the shortest and most direct road. If there had been boats on the river, I would not have seen them, but I should have known of them 1715 by hearsay. It is possible that there might have been some boats on the river, without my having heard of it; there might have been hundreds of them, without my knowing it. The dam at Lockport was built at an early day; I think before 1840. If it was built in 1837, I was then 7 years old. Our home at that time was about 5 miles from Lockport. This dam known as the McKee Dam was situated at about Jefferson street; it was 1716 in what is now known as the City of Joliet. I think there was a mill in connection with it, as it is spoken of freely as the McKee mill; I have never been to it. Prior to 1848 I do not pretend to have exact memory as to month or year. The canal was built and finished about 1848; after that, water trans- portation was on the canal. I would say that since about 1840, I have an accurate memory at this time of the situation; 1717 that would be from the time I was about 10 years old. I think I moved to Joliet in about 1871. I think it was prior to 1840 that I forded the river at Lockport ; I think it was in 1841 or ’42 somewhere; I could not tell very positively. I would not pretend to be accurate as to three or four years of a time there when it might have been. I forded it in company with my father, with a team of horses. I think in the deepest place it was about two feet deep. I think I have a clear and distinct recollec- tion to-day as to how deep it was. I think there was a regular drag across ; it might have been a riffle ; I could not say as to that. The place selected for fording would most likely be in the shal- 616 low parts of the river; I don’t remember whether it was or not; generally the fords of the river were on the riffles. During the next 8 or 10 years I usually crossed the river two or 1719 three times a year ; that would be in the summer time at the low stages of the water. In extreme high water, this river got to be half or three-quarters of a mile wide in many places ; I don’t remember how deep it was at those times. There were no measurements and no means of ascertaining. As far as any fence was concerned south of what is now Joliet, I don’t know about that until later years. There are no fences across the river south of Joliet, that I know of now. I would not swear that 1720 there ever was a fence across the river south of Joliet. North of Lockport there used to be several fences across the river. Mr. Fitzpatrick had one ; that fence went clear across the river ; it consisted mostly of boards ; sometimes they had a swing- ing fence, one that they could take out as they saw fit; the ma- jority of them were fixed that way; I would not swear that all of them were so fixed. All fences at that time were built most any way, with almost any kind of material that they had, but usually those were boards; also there was wire. The earliest wire fence that I recollect about, is 1845. Until long after 1845, as a 1721 general thing there was no wire to be used for fence or otherwise. Whatever was of wire at an earlier date, was made by a home blacksmith, or something of that kind, and strung across the stream. Kods were stretched across, and swung on what was a swinging gate; they were usually small rods, almost approaching wire. I remember distinctly of such rods as that being used in fences. I would not swear it was used there, but I will swear it was used north of there on Spring Creek — across Spring Creek. These rods or wires varied in length; I should say they were from about 15 feet to 2 rods. In setting them 1722 across the river, posts were set in the river; they were mostly of wood; a few of iron. I do not know where they got that material to make those fences. I may be slightly mis- taken in the date as to any wure or iron fence feeing put up as early as 1845, but I don’t think I am very far off. 617 1723 John McGowan, a witness on behalf of defendant, testified as follows: Direct Examination . My name is John McGowan. I live in Joliet. I was horn in 1826. I first came to Will Gounty before Will Gonnty had been made. I first came to this territory adjoining the Desplaines River on the 28th of May, 1835; I was 8 years old in December, 1834; I came from Golumhia Gounty, State of New York. We came by wagon to Albany and got on a canal boat at Albany and came the whole length of the Erie Ganal to Buffalo ; then we got on a steamer at Buffalo and took that to Detroit; from Detroit to Ghicago, we came on a 2-masted schooner called 1724 the ‘Mohn Jacob Astor.” From Ghicago, father hired a man, and he had to get an assistant to help him — another team. It took us one whole day to get the first 9 miles, because of mud and water. There were no roads at all in those days, from. Ghi- cago out. We had to unload and carry it to where they could set it down without being in water, and drive up and then 1725 load it over. We started from AVinterl)erry’s Point a little after sunrise on the 26th day of May, and got to Joliet at sundown. It was a wet season of the year, and there was a great deal of mud; we did not have to again unload our goods; we took them all on one wagon from there. We were heading for Ghannahon, but we did not know anything about what there was down there, so we came to Joliet and laid over two days. 1726 From there we went down to Ghannahon. We went down about a mile from the southwest end of what is called the AVide AVater. I refer to the AYide AYater on the Illinois and Alichigan Ganal. There was nothing but a big slough then, be- cause the canal was not built until 1848. From 1835 I lived in the vicinity of our location at Ghananhon for 39 years. On a direct line, we were a little over 3 miles from the Desplaines River. Old Air. Isaiah Treat had a little grist-mill and as soon as we got corn ripe enough and then dried it enough, we gathered it and dried it out around the stove-pipe and shelled it and took it over to that mill. I personally went with the corn to the mill. The first time I went was in 1835; that mill was in operation at that date. I waited until the 618 McCoican , — Direct Exam. — Continued. corn was ground into meal and took it back with me. There were two dams, one standing across each branch of the river. He had one run of stone in the mill. It did not take a great while to grind our corn. I never took only 4 or 5 bushels at a time because it was then green, that year’s growth, and of course would not keep very long. I lived on the right side of the 1728 Desplaines Eiver, going down the stream. I got to the mill by going across both branches, because the mill was on the east side of the east branch. I had occasion to cross the Hes- jdaines at other points and other times before 1848. I crossed at the foot of Treat’s Island, and I crossed down, over near where the Smith bridge is at the present time. The bridge is not exactly on the old ford, but it is very close to it. I have crossed the river here in Joliet at just below what used to be the island. It would be about half way between Exchange street and McDonough; that was where the ford was in the early days. There was a dam in the river at Joliet in 1836. I don’t 1729 remember whether there was in 1835 or not, but in 1836 McKee had a dam and a grist-mill. One thing that fixes that date in my mind is that father took some wheat there of the growth of 1836, and he had some trouble in getting his pay. I didn’t go with him to the mill but I had been past it several times between 1835 and 1836. Don’t ^know whether that dam was in in 1835 or not; that dam extended clear across the river; there was only one branch here. I don’t remember of a dam being located below what is known as the aqueduct near the mouth of the Desplaines Eiver, near a place called Beardstown in the 1730 early days. I remember the locks were constructed in Channahon. The stone with which those locks were con- structed first came from what was called afterwards the Alexander Quarry; that is on the east side of the river, or the left-hand side going down stream. They got the stone from Alexander’s Quarry across the river on stone trucks hauled by horses. The locks were constructed in 1846 and 1847. I remember the construction of what was known as the aqueduct. I could not say whether they got the stones from which that was constructed at Beardstown, or whether they got them at Alexander’s. They had quarries down there at what is called Beardstown; that -was just he- 1731 fore the conjunction of the Desplaines and Kankakee but I don’t know that there was anything there exce])t sand- stone quarries, that is to get stone heavy enough for aciueduct purposes. I have never seen boats plying up or down the Desplaines River carrying merchandise or passengers. I never heard of any such thing; there were trappers’ boats, skiffs — little l)oats and skiffs. I never went up or down the Desplaines River in a skiff. I have seen trappers with shift's. 1 have seen them all the way from the Davidson quarries clear to Treat’s Island, and I have seen them as far down — but there did not many of them go beyond Treat’s Island — but I seen a few down as far as the Smith’s bridge. Part of the stretch of river from the Davidson Quarry to the head of Treat’s Island is known as Lake 1732 Joliet. I have not seen a skiff go all the way up the river from the head of Lake Joliet to Davidson’s (luarry; T have seen them at different places. The current in that stretch of river was pretty swift; the first two miles and a half was pretty swift; a good deal of a fall. A row boat could be rowed u]) that cur- rent, but it would not be much fun. I never saw one rowed u]) there, and I never rowed one myself. The first time I was in Chicago after 1835 was in the fall of 1842, and then from that until the opening of the canal we were there every year, in the fall of the year, with produce, wheat prin- cipally. We got to Chicago with a team. We passed a good many other people on the road going to and from Chicago. That 1733 was the only way of getting produce from this territory, and below here, to Chicago that I ever knew, and I have lived within three miles of the Desplaines River since 1835 and up. to the present date. I don’t think it would be possible for boats to have gone up or down the Desplaines River since 1835 and up to the present date. I don’t think it would be possible for boats to have gone up or down the Desplaines River carry- ing merchandise without my knowing it, because 1 think it would have been such a memorable thing that it would have been talked about. In those early days the Desplaines River could not be used for transportation, that is unless it was in high water flood. 620 or in the spring. If they had steam powerful enough to counter- act the current, I guess they could have used it in high water, providing the boats did not draw too much water. 1734 I never heard of anybody owning a boat on the Desplaines Elver for the purpose of carrying merchandise or freight up or down. Q. When you came to Chicago, did you inquire as to the meth- ods and means that could be — that were available for getting into this country! (Objected to as suggestive and leading.) A. My father did. I didn’t. There was no other available means of getting into this country at that time. I remember of the Haven Dam in Joliet, some- times called the Malcolm Mill. I could not tell exactly when that was constructed. 1735 I have walked across the Desplaines Eiver down there at Treat’s Island. Where I went across there was none of it over 16 inches deep, and some parts of it were not more than 6. Nigger heads and boulders were pretty numerous in the channel near Treat’s Island. I had walked by stepping from stone to stone across the river. I went over dry shod on the stones. I have seen a few fences clear across the Desplaines Eiver. 1736 C ross-Examination. I was born in 1826. I came here with my father in the spring of 1835. My birthday is in the month of December. I guess I must have been eight years and a half old when I came here. I learned a good deal about means of travel from the time I started until I got here. Of course I didn’t know anything about travel until I started. I knew nothing about this country through here and from Chicago until I came. I didn’t make any inquiry and look about to find the best means of getting down from Chicago, but I heard my father talking. I know that I came from Chicago here with teams, and I know that for the first 9 miles after get- ting out of Chicago, the roads were very muddy. There was not much Chicago there at that time. We started from what was called the ‘H)ld Green Tree” house, across from the ‘Hndian 621 Agency’s’’ house. John H. Kinzie was the Indian agent there at that time. I don’t know anything about a ‘'Mud Lake” near the City of Chicago; I never heard of it. I haven’t heard of boatf? crossing between Chicago River and the head waters of the Des- plaines in high water time. I have lieard that the waters connect in high water time; tliat is, the waters of the Chicago River and the Desplaines River. I could not say when I first learned about it; it was previous to ’48, but I could not locate the year; that was, as I understood, at the time during a great flow of ice that caused the waters to dam up in the Desplaines. I didn’t learn where the ice was located, but I read that in the newspapers. I just know, in a general way, the fact that in very high water there was water connection between the Chicago River and the Desplaines River, and that in low-water that connection didn’t exist. I never heard of the name “The Portage.” The first year I went to Chicago, after I came here, I think was in 1842; I 1739 went with a team, with my father. I took some grain up; we had two teams; I drove one and he the other. I made no personal inquiry myself as to how I could get down here from Chicago, but I was always with my father when he was talking with the teamsters and others, and I heard all he said pro and con. He was talking to ditferent ones — to the hotel-keeper and others. He talked with the hotel-keeper first, because he had to get the address of the teamster from the hotel-keeper. He in- quired where he could find some teams or teamsters to bring him down, and the hotel-keeper directed him to one certain man hav- ing teams; then my father went to this man and engaged him to bring him down with his team, and I heard that talk. My father’s inquiry at the time as to how he could get down here was all that I heard. 1740 Nine miles out from where we started in Chicago it was very wet and muddy and the water was on the prairie ; there were no roads at all. Concerning the depth of the water that wO drove through, as the saying is, the tires and fellies of the wagon were very wet; it was all the way from two or three inches, up to two feet, in places. I cannot say how far up the Desplaines River went; I don’t know to-day how far up it goes toward Chi- G22 cago, but I know the Desplaines Biver and the south branch of the Chicago Elver come together in high water. Of course 1741 we must have been between the south branch of the Chicago Biver and the Desplaines. The condition that I have de- scribed existed all the way across that stretch of 7 or 8 or 9 miles that I traveled the first time. I forded the Desplaines Biver down near the location of what is called the Smith’s bridge. It must be 10 miles below Joliet; that is, below Lake Joliet. That bridge would be in the neighborhood of 3 miles below the lower end of what is called Lake Joliet; it might be more and might be less ; it is right in Channahon. Where I crossed there was a pretty swift current, but I would not say there was much riffles there. The rapids were further up stream; it was at a jdace where the water was running quite rapidly. It must have been a shallow part where this ford was, because we went through there with wagons very often. It would not more than cover front hubs. I don’t know the difference between deep and shallow in that line. If you get water 6 feet deep, you cannot ford it. I forded there at all times of the year when there was not a flood. I hauled three hundred loads of stone from the Alexander quarry. I took the stone home, the greater part of it. From the Village of Chananhon, it was just about one mile and a half to the Alexander quarry. The quarry was right in the bank of the river, that is, as soon as you went across the flat, about 30 rods, I should judge it was, there the (piarry was there in the hill. This ford where I crossed with my loads was about 1744 30 rods, as nearly as I can tell, below the Alexander quarry. The water at that fold was a little more sometimes than enough to cover the front hubs of the wagon; the lowest would be probably just over the front hubs. From the Alexander quarry, Treat’s Island is up the river; I should think it was about a mile and a half from the (piarry to the lower part of the island. I have seen skiffs on the river all along from Joliet to Channahon, going both ways. Part of the way the current was so ra])id that it was hard to get a skiff along, especially on the rapids, and there was quite a number of them. A good deal of the way from Joliet to Channahon is rapids. I know where Davidson’s quarry was; that was about a mile and a half above the head of Lake eloliet. Davidson's is not right across the canal from the head of Lake Joliet. R e-di rect Exam i u a t i o n . Those skiffs that I have seen on the river were used for tlie men to trap and fish. A way back in the early 40 's and late 30 's, most everybody had a skiff that lived anywhere near the river; they were for the purpose of recreation and trapping and fishing. When I first came to Chicago, the name of the hotel I went to was the Green Tree House." I was with my father when he made inquiries as to how to get into this territory. Q. And do you remember whether he discussed with the hotel- keeper where he intended to go? (Objected to as not being fair re-direct examination.) A. He told him he calculated to go some place below Joliet, but he didn’t know just exactly where. The hotel-keeper had no map that showed the location of the territory, that I know of. I didn’t see it, anyway. Q. Is that the question he asked the hotel-keeper, “How can I get to Joliet!’’ (Objected to as not being re-direct examination, and sug- gestive.) A. Yes. The hotel-keeper told him he would have to get a team and team through. Then my father asked where he could get a team, and was directed to a man who did teaming business. At that 1747 time I suppose there were men in Chicago who made it a regular business of taking people into this country, because they took us, and I suppose that it was the same way with every- body. Of course there were the teams going in from the country, as there were years later. Q. Ho you know how far from Chicago down the river they went in teams with merchandise! A. Down the Desplaines! Q. Yes, down the Desplaines Eiver and Illinois Eiver, to what points they went down with teams ! (Objected to as not proper re-direct examination.) 624 A. Well, I know they did go with teams as far as Morris. I don’t know of any below that point. Q. Do yon know of any merchandise going up the Illinois Kiver to points on the Illinois Eiver and then being hauled by teams into this territory? (CH^jected to as suggestive.) A. No. I don’t think there was any. Re-cross Examination. These skiffs that the trappers had on the river were used to take the trappers out to where they set them. They brought back the furs, mink and muskrat, which were principally the animals being trapped at that time, and once in a while they would catch an otter and hippopotamus, — no, I don’t mean that; possum, that is it. There were a great many people engaged in the business of trap- ping in the early days; everybody, most, was a trapper tiiat lived anywhere near that stream. I have known one man, and that is the only one that I knew personally how many he had. He had 200 traps ; that was principally for muskrat. This man didn’t hap- pen to want to use the Desplaines Eiver; he had plenty right be- tween where he lived and I lived, in the big slough there in wet Aveather. Others that did use the skiffs, used them to carry these traps out and set them at different places. They went every morn- ing and gathered up what they had caught and skinned them and brought the skins in. Game of that kind was veiw plentiful here at that time. I was not acquainted with those men that were on the river, but I knew that was their business. Charley Smith, prob- ably a good many people know him, or know of him, was a great fur gatherer. He didn’t trap any himself; he bought furs from the farmers and others. Most of the trappers in the early days — a Avay back about ’40 — most of them lived right here along the river bank and had a skiff of their own; they were not what you might call professional trappers; the professional trappers came a little later, in 1835 and ’38; they came from Chicago and some other places. I don’t know anything about aboA’-e Joliet, but below Joliet they traiq^ed as far as I know down to the mouth of the Kankakee. According to Schoolcraft, when the l)es])laines and DnPage come together they form the Illinois, and tliat junction is about 2 miles, may he a little more or a little less, from the junction of the Kanka- kee. My understanding is that it is the DuPage River and the Des- ])laines River that form the Illinois River, and the Kankakee em])- ties into the Illinois about 2 miles below the head of the Illinois. I know where the Economy Light & Power CMni])any has com- menced to build a dam. It is down at Dresden Heights. I have been down there. I was down there last Se])tember. The 1751 Economy Light & Power Company were at work then building their dam. I didn’t see them building their dam. I know the ])oint in the river where the Economy Light & Power Company started to build a dam; I know they are reported to be building. There are a great many who have the idea that that is on the Des- plaines River, but the old Indians that were roaming around here in 1835 have always said it was the Illinois just as soon as the waters of the Desplaines and DuPage came together, and I think it is borne out in Schoolcraft’s stipulation, and one thing and an- other, of the Mississippi Valley. I know that is what they always said. They appeared to be Indians that were well informed. No, I didn’t know Shabbona. 1752 R. AV. Killmer, a witness for defendant, was examined in chief by Mr. Mun- roe, and testified as follows: Direct Examiuaiioji. My name is R. W. Kilhner. I live 513 Herkimer street. I was 86 years old last month. I came to Joliet in 184-I-. I was 22 at that time. We came into this territory by wagon from Cleveland. Between the years ’44 and the opening of the Illinois & Michigan Canal, I was farming in the Town of DuPage, and had all our grain to haul to Chicago. I went up lots of times, had considerable grain to haul. We met very many people on the road. There was no other way of getting grain to Chicago. There was no other way of getting supplies or produce into this territory from Chicago than by teams to my knowledge. I never saw any kind of 1753 freight boat or boat carrying merchandise or freight, going up and down the Desplaines River at any time. 626 Q. Did YOU ever hear from any creditable source that any boat carrying merchandise or freight ever did go up or down the Des- plaines Eiver? A. I never did. I had occasion to ford the Desplaines Eiver at Goose Lake. My farm came right down to Goose Lake up here above Lockport. I often crossed there, because my cows ran down to the river, and in a short time they would cross the river over to get better food, so I had to go and get them occasionally. Many a time I had to do it. At those times I would cross on horseback. I have crossed the river above there and below there. I guess I never crossed it be- low Joliet. I think the Dagget Mill was in the Desplaines at Lock- ])ort when I came here in ’44. I know I went to mill there ] 754 often. The depth of the water in the river in ordinary times, excluding the time of extreme freshet or flood, was rather slim for navigation purposes. That would be my opinion. I can’t see how boats could navigate it at that stage. The roads between my farm and Chicago in early days were not any too good, be- cause it was a rainy season. Q. In your opinion, if the Desplaines Eiver could have been used for any useful purpose of commerce before any opening of the Illinois & Michigan Canal, would it have been used? (Objected to.) A. lYell, in my judgment, I think it would. (^). Then, as I understand you, in your opinion the reason why it wasn’t used for commercial purposes, was that it was not capable of being used. (Objected to.) A. AVell, I would think if it could have been used, it would have been used of course. That vrould be my opinion. Q. AVere there times in the Desplaines Eiver when there was scarcely no water running over the riffles? (Objected to as leading and suggestive.) 1755 A. Yes, there was very little running over. I have run my fences into the river a little ways, not very much. I don’t think very many of those owning farms along the river, did that. I can’t remember anybody running across the river at the time I am thinking of, because there was no wire, but maybe they have since been using wire. Cross-Examination. I said I had not heard from a creditable source of any boats being on the river. What I meant by creditable source, was where a man of noted credibility for truth and veracity, would tell me such a thing that I could believe him. 1756 Where I crossed on Goose Lake, the water was pretty nearly up to the horses’ belly, almost all the time when I crossed there. It was about 21 feet deep, a small horse. As to how much water would be necessary for navigation for commercial purposes, that depends on the craft some I should think. When the canal was opened, I boated on this canal a little. Four feet of water was all that our boat would draw and go aground at that. I should say four feet of water according to my experience, was necessary in order that profitable commercial navigation could be had. And when I said the water was rather slim in this river for navigation purposes, I had in mind that there ought to be 4 feet of water. The river was very rapid at the time I had 1757 occasion to cross it. In the summer time there wasn’t no fiood or anything of that kind. It was in the low stage of the water. The place where I crossed wasn’t a rapid place. Goose Lake in low water had no very great current. The roads to Chi- cago were pretty bad at certain seasons of the year ; in dry weather the roads were good. In wet w^eather they were muddy and bad. The same condition prevailed all over this country in an early day. I have forgotten how big a town Joliet was when I came here. I did know, but I have forgotten. It wasn’t very big in ’44. It was just a little village at that time. People as a rule were 1758 poor people. At that time Governor Matteson was the big man. He kept store in Ottawa street, I think. He was one of the biggest men i know of at them times. Q. Those men were not any of them able to own and operate boats that would cost a thousand or two thousand dollars apiece, were they! Take the farmers that lived round you, and the men that lived in Joliet at the time. A. No, as a general thing, that class of people were striving to fix their homes and farms. The only means these people had of moving themselves, with their products, was by teams. They had no boats, and I donT know but they might have been able to have them, but I don’t know it. I went to Chicago once myself with an ox-team, and saw 1759 plenty of others on the road. I don’t know whether the ox- team were the principal means of hauling rather than horses. We had prairie schooners that came from the south of here. A prairie schooner was a covered wagon, with 3 or 4 yoke of oxen on it. Re-direct Examination hy Mr. M unroe. Q. Did you ever hear from anybody whether creditable or in- creditable, whether the boats for the purpose of commerce ever went up or down the Desplaines Kiver ? A. No, I never did. Q. Did you ever hear of anybody owning a boat on the Des- j)laines river, for the purpose of carrying commerce? A. Never did. The canal was opened about four years after I came here. As soon as the canal was opened, we took warehouses in Lockport,, and from our neighborhood took the grain there. As soon as the canal was opened, that was the method of communication between Chicago and Joliet, and was used by the farmers. 1760 I never knew a farmer sending his grain on the boat. He generally took the grain to the warehouse and the warehouse- men loaded it on the boat, and sent it to Chicago. 1761 Certificate of Frederick A. Hill, Master in Chancery, that he took the depositions of the foregoing : Geo. Alexander, Ste- phen J. Williams, William S. Myers, Geo. F. Gurney, Xavier Munch, James Boyne, Louis K. Stevens, Jacob Adler, William S. Burt, David Layton, John P. King, Adam Comstock, Jas. C. Keen, Enos Field, Urias Bowers, Oliver S. Chamberlin, Seneca Hammond, Peter O’Brien, Franklin Collins, John McCowan and K. W. Kill- mer, at his office, 325 Barber Bldg., Joliet, 111., commencing at 9 A. M., January K), 1908; that said depositions by stipulation of 1762 the parties were taken down in shorthand and afterwards transcribed in typewriting, and l)y stipulation of the parties, the subsequent signing and swearing to said depositions to said wit- nesses, was waived, and it is agreed to that said depositions as returned, shall be accepted as correct, and have weight and effect as though such formalities had been complied with. Further certi- fied that no exhibits were offered in evidence upon said heal- ing. 176o Here follows statement of fees, as follows: Statement of Fees. Master’s fees $169.50 Stenographers’ fees 187.10 $356.60 Witnesses’ fees: George Alexander 2.35 Seneca Hammond 2.20 0. S. Chamberlin 2.20 Urias Bowers 2.20 Enos Field 2.20 J. C. Keen 2.00 Adam Comstock 1.10 John P. King 2.20 David Layton 2.20 William S. Burt 2.20 Jacob Adler 2.20 L. K. Stevens 2.20 James Boyne 1.10 Xavier Munch 1.10 Geo. F. Gurnev 1.10 Mh S. Myers . ' 1.50 Stephen J. Williams 1.80 K. MC Kilhner 1.10 John McCowan 1.10 Franklin Collins 1.10 Peter O’Brien 1.10 36.25 1764 Here follows the oath of said witnesses. 1773 Stipulation entitled in this Court and in the Circuit Court of Grundy County signed by counsel for complainant, appel- lant, and for defendant, appellee, that any and all objections on 630 either side to time or place of hearing or any other proceeding in the Circuit Court, including the settlement of bill of exceptions, are waived. Dated November 5th, 1908. 1775 Stipulation entitled in this Court and in the Circuit Court of Grundy County signed by counsel for complainant, appel- lant, and defendant, appellee, that the original Certificate of Evi- dence, instead of a copy, may be incorporated in the Transcript of Eecord to be filed in the Supreme Court in the appeal of said cause. Stipulation dated November 5th, 1908. 1779 CERTIFICATE OF EVIDENCE. (Filed September 15th, 1908.) 1779 Title of cause. 1780 NOTE EXPLAINING ARRANGEMENT OF CERTIFI- CATE OF EVIDENCE. This certificate of evidence is divided into two volumes, of which this present volume is Volume I, as follows: Volume I contains images 1 to 3,910 inclusive. Volume II contains pages 3,911 to 3,997 inclusive. Said volume two is also labeled and entitled Atlas of Maps, Plats and Charts.” In it are embodied the several maps, plats and charts offered in evidence and not elsewhere embodied in this certificate. Where these maps, plats and charts are produced and re- ferred to in this certificate of evidence (or in connection therewith) cross-references are made to the places in the Atlas where they will be found; thus: (Atlas, page )” And accompanying the maps, plats and charts in the Atlas, cross-references are made to places where they are produced or referred to in the evidence. In Appendix I are embodied the Deed of Cession from Virginia, and the several public and private Statutes, Legis- lative Acts and Resolutions offered in evidence and not else- where embodied in the certificate. In connection with the statement of the offer or introduc- tion of these statutes. Acts and Resolutions, cross-references are made to the places in the Appendix I where they will be found ; thus : ‘ ‘ (App. I, page ) ’ ^ And accompanying the statutes. Acts and Resolutions in the Appendix I, cross-references are made to the places where they are produced, otfered or referred to in the evidence. In Appendix II are embodied the other documents and docu- mentary evidence, — not elsewhere set forth herein. In connection with the statement of the offer or introduc- tion of these documents, cross-references are made to the places in the Appendix II where they will be found thus: ^^(App. II, page )” And accompanying the documents in Appendix II cross-references are made to the places where they are produced, offered or referred to in the evidence. 1781 Counsel for complainant exhibited to the court and offered in evidence the stipulation setting said cause for hearing on April 20, 1908, before Julian W. Mack, acting temporarily as Judge of the Circuit Court of Grundy County, which said stipula- tion appears elsewhere in the transcript of record. (Trans., p. 5565; Abst., p. 1713.) G32 1783 Counsel for complainant offered in evidence the follow- ing, which were received in evidence by the court, viz : The deed of cession of the Northwest Territory^ from Virginia to the general government, dated March 1, 1784, pursuant to the Act of Virginia of December 20, 1783. {Infra, p. 1719.) (Here follows explanatory note stating that the full text of said deed and of each of the legislative acts and resolu- tions below offered and received in evidence is set out and appears in full, thereafter, in said certificate of evidence in an appendix following the oral evidence, marked Appendix I” on page 3,757 of the said certificate of evidence. Said explanatory note also states that proper references are made to said Appendix I and the legislative acts and resolutions therein set out and each thereof is incorporated in full in said certificate of evidence by such references at the place of its offer and introduction.) Following each of the said legislative acts and resolutions as named below is given the page of this abstract of record where the said legislative act and resolution is abstracted, in parenthesis, thus: {infra, ^ )” Ordinance of July 13, 1787 {infra, p. 1719). ^ Act of Congress, May 18, 1796 {infra, p. 1719). Act of Congress May 7, 1800 {infra, p. 1719). A^t of Congress March 26, 1804 {infra, p. 1719). Act of Congress Feb. 3, 1809 {infra, p. 1719). Act of Congress April 18, 1818 {infra, p. 1720). Act of Congress Dec. 3, 1818 {infra, p. 1720). Constitution of Illinois of 1818 {infra, p. 1720). Then follow Acts of the General Assembly of Illinois, Feb. 19, 1839 {infra, p. 1720). Feb. 26, 1839 {infra, p. 1720). Feb. 28, 1839 {infra, p. 1720). 1784 Mar. 3, 1845 {infra, p. 1720). Feb. 12, 1849 {infra, p. 1720). May 29, 1889 {infra, p. 1722). May 14, 1903 {infra, p. 1722). Dec. 6, 1907 {infra, ]). 1722). May 31, 1887 {infra, p. 1721). Feb. 16, 1865 {i)ifra, ]v 1720). Oct. 20, 1871 {infra, p. 1721). May 10, 1901 {infra, p. 17:22). May i:i, 1897 {infra, p. 1722). 1785 May i:i, 1901 {infra, ]). 1722). Mar. 27, 1809 {infra, p. 1721). June 10, 1895 {infra, p. 1722). June 10, 1895 {infra, p. 1722). Also joint resolutions of the House of liepresentatives and Senate of the General Assembly of Illinois, of March 27, 1889 {infra, p. 1721), and iMay 27, 1889 {uifra, ]>. 1721), of 1871 {infra, p. 1721) and of 1881 {infra, p. 1721). To the introduction of the said joint resolutions of May 27, 1889, and of 1881, counsel for the defendant objected on the ground that the same were incompetent, immaterial and not per- tinent to the issues of the case, which objections were overruled by the court. Counsel for the complainant thereui)on offered in evidence a large general plat, showing the course of the Desplaines Eiver, being a certified cojiy of the original survey by the federal gov- ernment. Counsel for the defendant objected to the same on the ground that there had been no sufficient foundation laid for its introduc- tion. The court overruled said objection and admitted said })lat in evidence and the same was marked ‘‘McCullough Exhibit 1.” Here follows explanatory note stating that said AIcCul- lougli Exhibit 1 and other maps, ])lats and charts offered in evidence are each set out and appear in full in a separate volume of said certificate of evidence marked “Volume No. 2, Atlas of maps, plats and charts,” and that proper refer- ence to each of said maps, plats and charts as contained in said atlas are made at the point of the introduction of each thereof, and each thereof fs by such references incorporated in full in said certificate of evidence at the place of its intro- duction. And in this abstract of record, after the statement of the offer or introduction of each of the said maps, plats or charts is given, the page of the said Atlas where the said map, plat or chart is set forth and appears thus : “ (Atlas, p ) ”. Said McCullough Exhibit I is admitted in evidence (Atlas, p. 5913; Trans., p. 6480; Abst., p. 1914). 634 1786 IViLLlAM R. Tibbals^ a witness for eomplainant, testifies as follows: Direct Examination. My name is 'William R. Tibbals. I live in Dubuque, Iowa. I have lived there since March, 1857. I will be seventy-six years old the 27th day of next month. 1787 Since then the greater portion of the time I have been a captain and pilot on the Mississippi River between St. Louis and St. Paul. I first commenced navigating the upner Mississippi River in 1854. Have had government license as a pilot ever since I went there. First received Government license in March or April, 1855. My duties as pilot were to navigate the boat I was on and de- termine its course, and the crew were subject to my orders as far as navigating the boat was concerned, and in handling of the load they were subject to the captain and to me when I was cap- tain. . 1788 From the time I received this Government license I navi- gated the Mississippi River and the St. Croix River as a pilot. I became the LAiited States Supervising Inspector of Steam Vessels of the Fifth Inspection District in February, 1895, and served four years. I was appointed by President Cleveland. The Fifth Inspection District embraces from Keokuk, Iowa, to St. Paul, Minn., and the part of Lake Superior that borders on Wis- consin, and the tributaries of the Mississippi between the points named. That included the Iowa and the DesMoines Rivers. There was no steamboats on those rivers at that time. 1789 Also the Wisconsin, the Chippewa and the St. Croix Rivers were in my district, and navigation was being prosecuted upon them at that time. It was necessary for me to examine the vessels actually operat- ing and which were applicants to operate on those streams during the period when the local inspectors were not there, but I was in charge of the district and had two sets of local inspectors in my charge when located in Dubuque and Duluth. 1790 The vmter and channel conditions on the ^Mississippi River when I went on the river in 1854 was such that we had no serious trouble at all. In 1855 the water got very low and we had a good deal of trouble with the new boats that were built and came out that spring. In 1855 the depth of the low water that I referred to was between Lake St. Croix and St. Paul about 26 or 27 inches, that is about 30 miles of water. We had some boats that navigated the Mississippi that would draw from 12 inches to 3 ^ feet. I was referring not to one boat, — 12 inches being the empty and the 3^ foot, the low, — but was referring to two ves- sels, which were light and without any load. xV vessel 1791 which drew 12 inches of water when unloaded, when loaded to its capacity would carry about 80 tons of freight. It would be from 120 to 130 feet long and about 30 feet beam, and would draw when it was loaded about 3 or 31 feet of water, or somewhere between that. The larger vessel, which drew 31 feet of water when loaded to its capacity would draw about 61 feet and its load would be between 800 and 900 tons. That boat would be about 235 feet long and she would be 37 feet beam. 1792 Before I went, on the river I lived in Galena, Illinois. I went to Galena in 1852 and I knew that they were running a boat from Galena up the Wisconsin Eiver and saw her every time she went in there, and after I went on the river I was conversant with her. That boat was called the Enterprise.^’ She would draw when she was light, I should not think, over 10 inches, perhaps less than 10 inches, and when loaded she would draw from 28 to 30 inches. She would carry 75 tons of 1793 freight. In her ordinary operation I should think she would carry between 60 and 80 tons. When she was light, without any load, just her fuel, she would draw about 10 inches, somewhere, about 8, 9 or 10 inches; and when fully loaded 1794 she would draw 30 inches, perhaps more. She was a boat that had about 44 hull, 4-| side. She was what you call on the Mississippi Eiver a ‘‘Gunnel Boat,” and she had straight sides, about 4 feet, and they could load her clear to safety so they could make her draw nearly 4 feet of water. The depth to which she would descend into the water would simply depend upon the relative amount of the load; and it would fluctuate be- tween a draught of 30 inches and a draught of 8 inches. 1795 There were several boats that ran up the Iowa, from a little place in Iowa called New Boston. The Iowa Eiver (J36 Tihhals, — Direct Exam. — Continued. comes out at New Boston, and they went up the Iowa Eiver to get their freight and deliver it at New Boston, to he taken by the through boats to St. Louis. Two or three different sized boats ran there. Their draught would run from 12 inches to 18 or 20. They were tow boats, tow- ing barges themselves. They did not put much freight on them as a rule; that is, they kept them as light as they could, so that in case their barges got into trouble they would have room to work. 1796 In operating one of these boats, they put a ba]‘ge on each side of her and made them fast, pretty well forward. It really pushes them. They would have to hitch the two boats into them far enough to make them solid. Their loads consist of sack corn, and I have known of them ])ringing out 3,000 sacks on a trip, — about 1,000 sacks on each barge and about 1,000 on the boat. The draught of a boat carry- ing such a load would be about 3 feet, and the barges would draw but 2 feet. Q. You may state, Mr. Tibbals, if you know it to be a fact, if it is a fact, whether or not it is a fact that commercial navi- gation is carried on streams of water in different parts of the United States, drawing less than two feet of water? A. Yes, sir. I have steamboated on the Mississippi River on fourteen inches. 1797 The Moline chain of rapids is on the upper raijids, ex- tending from Rock Island to LeClaire, a distance of about 16 miles. It is right opposite the Town of Moline, and a steam- boat man would speak of it as being the swiftest water on the river. The rate of the current there was from 6 to 9 miles per hour. I have navigated through there before there was any im- ])rovement made there. I never knew of a steamboat that tried to go through there and did not get through. At the same time I have known them to have to lay at anchors and work 1798 themselves through. They would cordell some of them. I was on one boat they had to cordell. The method of cordell- ing was to put out a 600-pound anchor, which would catch in the bottom of the stream, and then wind the line up on a capstan and pull the boat up. AVlieii they ^ot the boat iij) to 1799 the anchor, they would repeat the operation. I have done that on the lower rapid at Keokuk, and it was also used on the rapids in the Mississippi, called the Smith chain, which is swift water too, but not as bad as Moline. Q. Now, I will ask you, Mr. Tibbals, to take the case of a river which, for a period of four to five months each year, ex- clusive of the time she was frozen over, and exclusive of the time of extreme low water, presented a depth of water which would range from 18 inches to 10 feet of water, in a channel which would range from 250 wide, to a quarter of a mile wide, and which had a current which varied from an almost imperce])tible cur- rent in some of the wide spots where it was a quarter of a mile wide and ten feet deep, to a current much of the way at twu and a half miles an hour, and which would ascend to three and a half miles an hour, and in one or two places to five miles an hour, and in one or two places to seven and seven and a half miles an hour, the swiftest current in one instance being in a shallow part, and in another instance being where the water 1800 was somewhat deeper, but not up to the large depth, I will ask you to state whether or not, in your judgment as a navi- gator, that stream would be a navigable stream? Counsel for Defendant. That is objected to, if the court please, as incompetent, irrelevant and immaterial, and it does not state, if it is intended to include the Desplaines, it ^loes not state the physical facts and conditions there with enough accuracy. The Court. M^iatTact is left out? Counsel for Defendant. One important fact is the slope to the river and another is the bend in this stream. The Court. He may answer the points — he may answer first whether the questions of slope and bends in the stream would or would not affect any answer he might giv^e. A. Well, I don’t know that I exactly understand the situation, and if I understand the question. Counsel for Complainant. I submit in regard to the slope, if your Honor please, that the slope in so far as important, is im- portant in producing the velocity or current in the water, and. 638 having given the velocity or current of the water, I have covered that feature, and if the bends in the stream are important, I have here, if your Honor please, a map which has already been intro- duced in evidence, and one which is a certified copy of the Gov- ernment record, and this is the one that has no annotations of any kind upon it, but just as it comes from the 1801 Government, and it is drawn on the standard Government scale of two inches to the mile, and I am perfectly willing to incorporate into the question that the stream is a stream such as is shown you on the map before you, which may be called Mc- Cullough Exhibit 1, and which is drawn on the scale of two inches to the mile; and the particular part of the stream we are inter- ested in is from Joliet to the mouth of the river and the bends are such as are shown on this McCullough’s Exhibit, which is drawn upon the scale of two inches to the mile. Counsel eor Defendant. Does your question still stand? Counsel forIDomplainant. It does. I have embodied this other. Counsel for Defendant. There are other objections. The Court. Let us have them all at one time, Mr. Porter. Counsel for Defendant. Of course I could write out a hypo- thetical question that I think would be proper. The Court. You can put that on cross-examination. Counsel for Defendant. This witness cannot tell any sup- posed examples, unless he knows the declivity of the river. The Court. That has been given. Counsel for Defendant. And between the points where navi- gability is supposed to exist. It might be the frequency of rapids or ripples or shallow places. This supuosed stream may have a light current in one place and a greater current in another place. 1802 The Court. You may state, after having heard the ob- jection of counsel, whether you are competent on the hypo- thetical question as put to you by Mr. Starr, and without further information bearino* on the point, suggested in the objection, to answer the question whether such a river as stated is or is not navigal)le? A. As Mr. Starr asks the question, I would say yes. 631 ) The Court. That is you would say that any river which an- swers the description given by Mr. Starr, irrespective of any- thing else— A. Yes, sir. Q. No matter what else you might add to it, it would always remain and be a navigable river? A. Yes, sir. C ross-Examination . I have knowledge as to the rapidity of the current of the Moline Rapids, not as an engineer, but I was connected with the 1803 United States Engineer’s office at Rock Island for seven years. I was navigating over the rapids and I was with them and heard the conversations in the office and heard the engi- neer that used to work on the rapids. The Moline Rapids are not the same rapids as those referred to as the Des- Moines Rapids. The DesMoines Rapids are at Keokuk, the foot of them ; the head of them is at Navoo, Illinois. The Moline Rapids commence at Rock Island and Davenport and extend to LeClaire, about 16 or 17 miles. The Rock Island Rapids are the same as the Moline Rapids. The slope of the water I do not know well enough to make a positive statement. I know they are pretty swift, that is all. I have doubled the trip a good many times over the rapids; that is, towed part of the load and then went back and got the other part. I have navigated these rapids before they were im- proved. The improvement was made in 1877. Before the 1804 improvement was made, it is not true that a good portion of the time it was dangerous, if not impossible, to navigate these rapids. It never has been in my time. I always got over the rap- ids. Of course, there is more water now. The Deposition of George W. Reed was thereupon otfered and read in evidence by counsel for com- plainant as far as the close of the direct examination. (For rulings on same see Abstract of Depositions, {supra, p. 155). 640 1806 Frederick H. Hild, a witness for complainant, testified as follow^s : Dir ect Exa min at ion. My name is Frederick H. Hild. I reside at 321 Wells street. I am librarian of the Public Library. I have been in that position 21 years. I have been with the Library since 1874, either as assist- ant, or librarian. Dr. William F. Poole was librarian in chief at the time I was assistant. Prom my experience as librarian, assistant librarian and otherwise, I have become familiar with a large number of recog- nized standard historical works. ‘‘LaSalle and the Discovery of the West,” by Francis Parkman, Boston, Little, Brown & Company, 1869, is a standard author- ity. 1807 “Discovery and Conquests of the Northwest, with History of Chicago,” by Eufus Blanchard, Chicago, Blanchard & Com- ]iany, 1888, is a standard book of recognized authority. “Chicago Antiquities,” comprising original items and relations, letters, extracts and notes pertaining to early Chicago, by Henry H. Hurlbut, Chicago, 1881, is a standard and recognized authority. “Early History of Illinois” by Sydney Breese, Chicago, E. B. Myers & Company, 1884, is a standard history. “Expedition from Pittsburg to the Rocky Mountains,” from notes of Major S. H. Long and others, by Edwin James, London, 1823, is a standard authority. “Great Highways of the West,” Clark & Company; “Illinois in 1837,” by H. L. Ellsworth, S. A. Mitchell & Company, Philadelphia, 1837, is also a standard work. “American Atlas,” Philadelphia, 1822, is a standard authority for that time. 1808 “Atlas in the State of Illinois,” Union Atlas Company, Chicago, 1876, is also an authority. “Description of Bounty Lands in the State of Illinois,” also the princiiial routes and roads by land and water through the Territory of the United States, by E. Dana, Cincinnati, 1819, is a standard work for that period. 641 ‘^The Last of the Illinois,” by John D. Caton, is also an author- ity. ^^John Wentworth’s Early Chicago,” is a well known authority. ‘^Denenhower’s Chicago City Directory for 1851,” is a standard work. Charles Fenno Hoffman’s Winter in the West,” is a standard authority. ‘Hjetters Descriptive of Chicago and Vicinity in 1833-4,” re- printed as ^‘Fergus Historical Series,” is a standard work for that period. ‘‘Andreas History of Chicago,” is a well known authority. “Beck’s Gazetteers of Illinois and Missouri,” by Louis B. Beck, 1823, is a standard authority. “The Navigator,” twelfth edition, 1824, is a standard authority. “The Encyclopedia of Geography,” by Hugh Murray, F. K. S. E., is a standard authority. “Delation de la decouverte de plusierus pays siteuz au midi de la nouvelle, France, Faite en 1673,” Paris, D. Jouaust, 1875, is one of the Jesuit Eelations, well known authorities. “New France,” 1610-1791, Burrough’s Edition, is a standard au- thority. “Woodruff’s History" of Will County” is a standard authority. “American State Papers, Volume I, Indian Affairs,” is a stand- ard official authority. “Expedition to the Source of St. Peter’s Elver,” Keating, is a standard work. “Expedition Through Upper Mississippi,” Schoolcraft, is a standard work, a standard authority on that subject. “Western Pilot” by Cummings, is a standard book for that time. 1810 “History of Wisconsin,” by "William E. Smith, is a stand- ard authority on that subject. 642 Cross-Examination. I said that a book called ‘‘Illinois in 1837,” by H. L. Ellsworth, was a standard authority. I look on that as a book which is much sought after by collectors of Illinois history for that period. It was written to encourage .emigration to the State of Illinois, and there are a number of books of that kind that are very well known and sought after by libraries and collectors. As to how much value or weight was given to an opinion expressed in that book, I don’t know. 1811 Q. All you know then is that there is a demand for the book among the collectors? A. Yes, sir. Q. And is it not a fact, Mr. Hild, that Mr. Ellsworth did not write that book that bears his name? A. That I don’t know. Q. Is it not a fact that that book is a mere compilation taken from other books and almanacs of the current day at the time, and was not that published by a map maker in connection with a map? A. That may be. As I said, it was a work compiled to encourage emigration to the state, and most of those books at that time were made up in that way. Q. Do you know who Mr. Ellsworth was? A. No, sir. I regard it as a standard authority in this way, that it explains con- ditions as they existed at that time; that was one of the best 1812 authorities or sources of information that people had at that time. The general reputation of most of the other books is better than Ellsworth’s. I should take Parkman’s “LaSalle and the Discovery of the West,” “Blanchard’s Discovery and Conquests of the Northwest,” although that is largely a compilation; Hurlbut’s “Chicago Anti- quities”; and “Breese’s Early History of Illinois”; “Major Long’s Expedition from Pittsburg to the Kocky Mountains,” that is a book published under the auspices of the United States Govern- ment, written by an army officer, Mr. Edwin James. It was 1813 made from Major Long’s notes. They used his work as a basis. James made the compilation from the Government wmrk; Long wrote several Government reports and James made this compilation for more popular reading. As far as I know, I think it is regarded as authority. It is based on Government re- port, but was not itself published by the authority of the United States. Then here is the ‘‘American Atlas” of Philadelphia, 1822. 1814 Part of that was reprinted. That is accepted among his- torians as standard reliable authority, as showing the condi- tion of the State and geographical knowledge of the country at that time, in 1822. This next book “Description of the Bounty Lands in State of Illinois,” is a book I imagine a great deal like the Ellsworth book, written to encourage emigration to the State. It is like books of that kind, — books intended to induce emigration. Historians often quote this book as authority. I know it by its reputation as a book sought for by libraries collecting materials for western history. It is the custom among collectors to buy some books published 1815 in early days, at real early times, authoritative or not, to seek them merely to get the first book, but I don’t believe it is true of this book. The next book is “The Last of Illinois” by John Caton of Ottawa. I consider that a high authority. Then John Wentworth’s “Early Chicago,” is a good authority. He was Mayor of Chi- cago during the early ’50s. Which of the two books was the better authority would be hard to tell ; both men knew what they were talking about. The next book “Denenhower’s City Directory for 1851” 1816 is an official publication. I give that as much weight as I would any directory. It is a fact that it was a directory pub- lished by private individuals. Q. And has no official character whatsoever! A. No, sir. I don’t mean it in that sense. Q. What knowledge have you of the accuracy of that book or of the statements therein contained, if you have any! A. I have no special knowledge. Charles Fenno Hoffman’s “A Winter in the West,” is a well known work descriptive of early Chicago and this part of the country. That was published in the 30 ’s. That and Harriet 644 H i I d, — C ross-Eiam. — Continued. Martineau’s “Letter of Chicago,” are both Tvell known books de- scribing conditions in this part of the country at that time. Andrea’s “History of Chicago” is a well known work in three volumes, considered one of the best sources of general in- 1817 formation and data about the history of Chicago that there is, published about twenty years ago. Harriet Martineau’s hook is very often quoted. It has been commented on adversely on account of the views she took on social life here in the west. But as to the actual physical condition of it during her travels, she is regarded as very reliable. She came over here herself and all the things she writes about were learned by her first hand. Her statements are reliable, except some of her comments on social conditions, where she writes from an English point of view. Beck’s “Gazetteers of Illinois and Missouri” is a standard work of that time, that is very often quoted by later writers. Q. That was a compilation, was it not? A. I believe so; yes, sir. “The Xavigator,” which runs through a great many editions, the copy specified here is in the Public Library as the twelfth edi- tion. As to the weight and nature of the testimony that is con- tained in those books, I should say that a hook that goes 1818 through so many editions has some meiit, some value. Then there is Hugh Murray’s “Encyclopedia of Geog- raphy.” That is compiled by an Englishman, a member of the Geographical Society, and this copy here is an American reprint. That is a standard work of that kind, just the same as Smith’s “Dictionary of Geography,” or one of those modern Gazetteers. Then the French work here is an old Jesuit Relation, 1673. That is also included in the following one, which is a translation in sixty volumes of all those historical pamphlets published at that time known as the Jesuit Relations. They were published between 1610 and 1791. There were a great many of them. This work specified here is in 60 volumes, contains translations, and the original texts of all Jesuit Re- lations. 1819 Q. About the work by IVoodrutf, has that any genera) reputation among historians outside of Mill County? A. None more so than all those compilations of County history. They are thrown together and contain a lot of facts and data. Q. Do you personally know whether statements made in that book are to be relied upon or not! A. Not in that book, no, sir. I know, it is the only history of Will County that has been published. The ^ American State Papers” is a compilation of documents from the first to the fifteenth Congress, a sort of digest. This particular volume is known as the volume on Indian atfairs. It is an official document of the United States Government. It con- tains only official papers. ‘‘Expeditions to St. Peter’s Eiver,” by Keating, is a book that contains a great deal of information about the Northwest 1820 country, Wisconsin and Minnesota up there, published about 40 years ago, I think. ’ Q. Have you any knowledge as to whether that book is thor- oughly reliable! A. Only. its general reputation. That is based on the early explorations. As to “Expedition Through the U])per Mississippi Kiver” by Schoolcraft, I will say that is a very high authority, and he has done a great deal of work for the Government by way of explora- tions and writing about the Indians ; and on the strength of his name, I would give this book a high rank on this authority. I consider Schoolcraft as having greater weight and authority than any of these other authors that I have mentioned on the subjects covered by this book. I should say he was a higher authority than some of those minor writers. He was a better known man. The book called “The Western Pilot,” by Cummings, is 1821 a book a good deal like the volume on “The Navigator.” It is a book on early waterways here in the west. Q. What do you know about the authoritative character of that book! A. Nothing. Q. You are not able to say then whether that book is to be relied upon in any way! A. No, sir. “Early Wisconsin,” by William R. Smith, is one of the standard histories of Wisconsin, published by the AYisconsin Historical As- (346 sociation, about 25 years ago, I think, or 30. The statements made in that book I would give considerable weight, considering the man who wrote it. Eufus Blanchard, who wrote one of the books I testified 1822 about, died several years ago. I knew him well. He got out two editions of it. The first edition was in one volume, and he afterwards elaborated and made two volumes additional. The 1888 edition is the one-volume edition. 1823 lie-direct Examination. I have paid a good deal of attention to books of history from the standpoint of the bibliography and the rarity; but from the standpoint of the accuracy from an historical standpoint, from the standpoint of a professor of history, I have made no special study of that; but my interest in the matter is more than the bibliographic value and rarity of the book, I consider the value to the community to have a book like that in the library. Q. But from the basis of a Universal Library, we will say, of a professor of histon^, would you say that you were compe- tent to form an opinion of those books and their value! A. I think so, of a good many of them ; yes, sir. Re-cross Examination. Q. Have you read ‘‘The Navigator’’! A. I have read part of it. Q. Have you read it with a view of determining whether 1824 its statements of fact are true or not! A. No, sir. I simply looked at it and saw it was a very interesting book, and the maps, etc. Q. Do you know any one with whom it has the reputation of being an authoritative work! A. No, sir. Q. Have you read Andreas’ “History of Chicago”! A. Not entirely, no, sir; I have read parts of it. Q. Have you made any comparisons or investigations for the purpose of determining the accuracy of its statements, determin- ing whether it is authoritative or not! A. Yes, sir; I have some- what. 047 * Q. Have you in reference to the Desplaiiies and the Illinois Rivers? A. No, sir. Q. Or the travel upon the Illinois and Desplaines Rivers? A. No, sir. Q. Have you made an examination of any of the books de- scribed here with a view to any statements they may contain as to the Desplaines and the Illinois Rivers, and travel upon them, Vvdth a view to determining whether they are correct or not, or au- thoritative or not? (Objected to as not giving the test ado])ted by the courts; overruled.) A. I have not. 'Counsel for Defendant. That is true as to all the books, is it not? A. Yes, sir. Q. As to which you have testified? A. Yes, sir. Counsel for Complainant. We did not ask Mr. Hild to book up and brief up in order to testify. AYe took the general quali- fication — The Court. Yes; but Mr. Starr, you introduced him for a spe- cific purpose, and I will say right now that as to a great many of those volumes you have not laid the proper basing. Some of these books are well known and standard, but, Mr. Hild, as to a good many of these, is limited to a bibliographical knowledge, and not their value as historical works. Thereupon counsel for defendant offered and read in evidence the cross-examination of Mr. George Reed, and also the re- direct. (For rulings on same see Abstract of Deposition, supra y p. 158.) 1826 Thereupon counsel for complainant offered and read in evidence the direct examination in the deposition of George C. Ehrhard, followed by counsel for defendant, reading the cross- examination. (For rulings on same see Abstract of Deposition, supra, p. 162.) Thereupon counsel for complainant otfered and read in evidence the deposition of Francis P. Belz. 648 (For rulings on same see Abtsract of Depositions, supra, p. 439.) 1827 Thereupon counsel for complainant offered and read in evidence the deposition of Alexander McKenzie. (For rulings on same see Abstract of Deposition, supra, p. 166.) Thereupon counsel for complainant offered and read in evi- dence the deposition of Theodore E. Burton. (For rulings on same see xVbstract of Deposition, supra, p. 182.) Thereupon counsel for complainant offered and read in evi- dence the deposition of William Lorimer on behalf of the com- plainant. (For rulings on same see Abstract of Depositions, supra, p. 195.) Thereupon the complainant offered and read in evidence the following extracts from Keports of IT. S. Engineers, an extract from Executive Document No. 16 of the House of Eepresenta- tives, 40th Congress, First Session, entitled as follows: 1828 ‘^Survey of the Illinois Elver. Eeport of Brevet Gen. J. H. Wilson on the survey and examination of the Illinois Eiver.’’ United States Engineers office, Des Moines and Eock Island Eapids Improvement and Illinois and Eock Eiver Surveys. Davenport, Iowa, February 15, 1867. ‘‘General: Having been charged by instructions from the Engineering Department with the survey of the Illinois Eiver from La Salle to its mouth, provided for by Act of Congress June 23, 1866, I have the honor to submit the following re- port.” * * * The supposition is that the survey of this river has imme- diately in view of its capacity for navigation to LaSalle for the largest possible class of steamers that the river will admit when certain obstructions shall have been removed, and ulti- mately the determination of canal facilities with Lake Mich- igan, and the solution of the question of an adequate supply of water from Lake Michigan as a reservoir for the canal and river during periods of low water. * * * Subsequently by letter from the engineer department, dated January 8, 1867, I was directed to continue the examination of the Illinois Eiver as far towards its source as there may be reason to believe that it is susceptible of improvement for the purposes of commerce and navigation. 1 829 Page 5 : There is no doubt that dredging alone, or at most, dredging and a feeder from the lake, can be made to answer every pur- G49 pose in i;lie improvement of the Illinois Elver, if it is to he considered as independent navigation of no other tlian local importance; but it must be remembered that this river is not the exclusive property of those living upon its banks. It forms already an important link in a network of river navi- gation extending, with its various branches, through seven- 1830 teen States of the Union, and is destined at no distant day to become the great commercial highway between the pro- ductive States of the west and northwest and the markets of the world. The Illinois River seems to have been specially designed by nature as the line by which the waters of Lake Michigan are to be connected with those of the Mississippi. Its two principal tributaries, the Desplaines and the Kankakee, ris- ing, the one in Wisconsin, and the other in Indiana, run for many miles almost parallel with the western and southern lake shore, and are separated from the lake basin by a ridge of insignificant height and width. A momenUs consideration will show that at no remote period the waters of the lake must have been carried off by these streams as well as by the St. Lawrence. In fact it is the opinion of many old contractors who are well acquainted with the entire region, that a much more favorable location for a steamboat canal can be ob- tained from Bridgeport to Section 16 of the present canal, by following the line through Mud Lake; but let this result be as it may, the data herein contained, together with the existence of a canal of limited capacity already in operation, demon- strate beyond a doubt that the waters of the lake may be car- ried into the Illinois River through a navigable channel of any required dimensions, and at a cost which cannot be regarded as excessive when the objects to be obtained are duly con- sidered. Ib31 Page 7 : ^^From the foregoing considerations, I have the honor to recommend the improvement of the Illinois River by a system of locks and dams, to be placed at such points between Lockport and Grafton as may be determined, after a full and careful survey, to be the most advantageous ; and that navi- gation shall be extended to the harbor of Chicago by the en- largement of the Illinois and Michigan Canal, so as to adapt it to the use of the largest boats plying upon the Mississippi River.’’ 1832 Page 8 : ‘‘We can assert confidently, however, that the interests of commerce and the national defense require navigation be- tween Lake Michigan and the Mississippi River for the larg- est river steamboats; that all the physical circumstances unite in making the line, by the way of the Illinois and Mich- 650 igan Canal and Illinois Eiver as the only feasible route for such a work, and that, therefore, the enlargement of the canal and the improvement of the river by locks and dams as herein described, are demanded by considerations of economy as well as by the public welfare. 1833 ‘‘It is quite evident from what is already known, that steam boat navigation can be more cheaply provided between Lock- port and LaSalle by following the line of the river than by enlarging the canal. The State of Illinois has taken this mat- ter in hand, and during its recent session of its Legislature has 1834 passed a law providing ultimately for the improvements rec- ommended herein.^’ Page 11 : “In closing this report, I beg leave to invite the attention of the engineering department to the interesting report of my assistant, Mr. S. T. Abort, and a statement (marked Exhibit A) compiled by Col. H. A. U1 tiers, civil engineer, assistant, giving an outline of the Canadian and New York canal sys- tems.’^ And then follows Me. Abertis Report, page 21 : “The Desplaines Branch of the Illinois approaches to with- in twelve miles of the western shore of the lake, while the Kankakee, another branch of the same river, may be fifteen or twenty miles from the Great Calumet River, a tributary of the lake at its lower extremity. It is evident that any de- sired fall can be obtained, from the fact that the Desplaines, at Lockport, twenty-nine miles from the Chicago River, and 33 miles from the lake, is 20 feet below the surface of this great natural reservoir. “The summit level of the Illinois and Michigan Canal be- 1835 tween the last named points^ is being now cut down to the standard low-water level of the lake, for the purpose of drain- ing the stagnant water of the Chicago River. It is estimated that this channel will discharge 24,000 cubic feet per minute, a quantity equal to two-thirds of the discharge of the Illinois River at Treetop bar during the low-water stage. This supply must have an ameliorating effect upon the worst navigable condition of the river.” Page 23: “The practical conclusion from the foregoing statement is that a method of improvement by feeding from Lake Mich- igan as a reservoir is feasible between LaSalle and Grafton, but above that point it will be necessary to employ locks and dams, and small sections of canal at Lockport, Joliet and Mar- seilles Rapids.” Page 28: “It may not be out of place before closing this report to bring together a few facts which establish the superiority of ()51 the Illinois River as the route for a navigable connection be- tween the lakes and the Mississippi River.” ^‘The sources of the river being in a lower latitude than any of its rivals, this advantage increases as the river ad- vances in its course, and, as a consequence, less obstruction to navigation, and less damage to works of improvement may 1836 be anticipated from the length of the winter and the break- ing up of ice in the spring. ’ ’ Page 29 : ‘‘A more important advantage belongs to the valley of the Illinois; upon it alone is a navigation ])racticahle for the larg- est steamers, by the completion of which a union will be ef- fected with the best navigable conditions of the western riv- ers, possessing an aggregate length in their main channels of 12,000 miles, exceeding in their collateral channels and tribu- taries 39,000 miles, and draining an area of 911,000 square miles with 90,300 square miles of lake surface, bearing a commerce of 413,000 tons burden.” 1837 The Report of Colonel J. X. Macomb, ‘^Reports upon transportation routes to the seaboard”; being Appendix CO of the Annual Report of the Chief of Engineers for 1875, p. 95, paragraph 2 : ”This survey led to the conclusion that, on every account, the Hennepin Canal and Upper Illinois River, and enlarged canal from Joliet to Chicago, will afford the best through route for navigation between the Mississippi River and Lake Michigan that can be secured in this vicinity. Paragraph 5 : ‘Hndeed the Hennepin Canal, without the improvement of the Upper Illinois River and the enlargement of the eastern portion of the Illinois and Michigan Canal, would be useless as an outlet for the freights of the Upper Mississippi River; and a careful consideration of the subiect has shown that the improvement of the Upper Illinois River, to accord with the scheme of improvement now in progress for its lower portion, is greatly to be preferred as a measure of economy in its broadest sense, rather than to undertake the enlarging 1838 of the western portion of the Illinois and Michigan Canal lying between Joliet and the Hennepin basin.” Paragraph 6 : ” The improvement of the eastern portion of the Illinois and Michigan Canal involves the further cutting down of the summit-level and enlarging the water-way so as to afford an unfailing supplv of water from Lake Michigan for the im- proved Illinois River.” 652 1839 The Eepokt of Majok Handbury, Chief of Engineers for 1887, part 3, Appendix II, on page 2122, paragraphs 2 and 3: ^^The United States and the State of Illinois have long been committed to the project of opening a water communication between the Mississippi Eiver and the northern lakes of ca- pacity sufficient for the wants of coimnerce and for the exig- encies of our national defense, should these ever arise.” * * ^^The problem of connecting Lake Michigan with the Missis- sippi Eiver by a commodious waterway, that could be used for commercial, military, and naval purposes, has received at- tention from our most thoughtful statesmen from the day of Albert Gallatin to the present.” Page 2123 : 1810 ” Before taking steps looking to the enlargement of the Illinois and Michigan Canal, in the interests of commerce, or as a military expedient, the advisability is suggested of ascer- taining whether or not some route can be found from Joliet to Lake Michigan at a point where better facilities can be pro- vided for handling the large commerce of this section. It is thought by some that a practical route exists between the valleys of the Desplaines and Calumet Eiver s, along which a canal such as will acommodate the largest vessels using the improved Illinois Eiver can be constructed, at a cost less than that estimated for the enlargement of the Illinois and Michigan Canal from Joliet to Chicago. Before definitely locating that portion of this route which is to lie between Joliet and Lake Michigan, and which will in- volve in its construction the expenditure of a very consider- able amount of money, every possible route should be exam- ined, and every engineering phase of Jhe problem should be considered. For these reasons I venture to respectfully sug- gest the advisability of calling the attention of Congress to the necessity of making available the sum of $10,000 ; as much thereof as may be necessary to be expended in examinations and surveys between the southern end of Lake Michigan and 1841 the Desplaines Eiver at or near Joliet, Illinois, and on the preparation of plans and estimates of cost of constructing, along the most practical route so determined, a waterway having sufficient capacity to accommodate the same class of vessels and commerce that the present improved condition of the Illinois Eiver is designed to accommodate.” The Eeport of the Comstock Board of 1886, found in this same volume on page 2125, the last paragraph: “The report of the Board of Engineers shows that to en- large the canal between Joliet and LaSalle, and provide for G58 an increased navigation, equal to that contemplated by the improvements in progress on the Illinois River, between La Salle and its junction with the Mississippi, would require an expenditure of money greater than the cost of improving the river itself between Joliet and LaSalle. If such is the case, the river route should be improved as recommended.” 1842 The Report of the Chief of Engineers, J. C. Duane, found in this same volume on page 2127, paragraph 2 : ‘‘With reference to the conditions in this act of Cession regarding the enlargement of the canal, I would remark that the locks and dams that have been and are to be built by the United States below LaSalle have been projected with a view to a steamboat navigation of the first class, and the project looks to a continuation of navigation upon the same scale be- tween LaSalle and Joliet, and since the cost of an enlarge- ment of the canal between these points, would, it appears, be greater than that of the improvement of the river itself, a river route between those points should be adopted.” The Report of the Board of Engineers, found in this same vol- ume, on page 2129 ; paragraph 3 : “The waterway from Chicago to Grafton, on the Missis- sippi River is a most important one, and when completed there is little doubt that it will richly pay for itself in the reduction and regulation of freights.” The Survey of 1889 by Captain W. L. Marshall, Executive Document No. 264, 51st Congress, 1st Session, commencing 1843 on page 12, at paragraph 2 : “Chicago River Route. The route proposed follows the Chicago River from its mouth, via its south branch and the Ogden Ditch to Summit, thence parallel to the present loca- tion of the Illinois and Michigan Canal, on lower ground, three miles more or less, where it enters the bed of the Des- plaines River, which it practically follows, cutting off bends to Sag Bridge, where it unites with the second or Sag Route.” Page 21, paragraph 7 of the same report : “The route will be navigable at all stages below a stage corresponding to a discharge of from about 30,000 to 35,000 cubic feet per second, or under all ordinary conditions of the river, the extreme floods occurring at rare intervals, and then being of short duration.” Thereupon the complainant offered from the same document No. 264 the borings along the Chicago Route, commencing on page 69 at No. 46, explaining that these borings were made to discover 654 the different strata ; first the water on to}), and then the strata down through, preparatory to a deep water way; and the point which the complainant introduced them for was to show the depth of water down this river in 1889; thereupon reading as fol- lows : 1844 “Boring Xo. 46. Located in the Desplaines Eiver 400 feet west and 3,400 feet north of the southeast corner of Section 32, Town 38 X'orth, Kange 12 East, Lyons Township, Cook County, Illinois, — depth of water 5.5 feet.” “Elevation of surface water 163.1 feet; commenced boring 11:30 A. M., June 25, 1889; completed boring 11:05 A. M. ' June 28, 1889. 1845 “Boring X"o. 47. Located in the Desplaines Eiver, 2,400 feet west and 1,600 feet north of the southeast corner of Sec- tion 6, Township 57 X'orth, Eange 12 East, Palos Township, Cook County, Illinois. Depth of water six feet. Boring made June 29, 1889. “Boring No. 48. Located in Desplaines Eiver, fifty feet from the north bank, two hundred feet west and twenty-two hundred feet north of the southeast corner of Section 6, Town- ship 37 Xorth, Eange 12 East, Palos Township, Cook County. Depth of water nine feet. Boring made July 5, 1889. “Boring X"o. 49. Located 1,300 feet west and twelve hun- dred feet north of the southeast corner of Section 32, Town- ship 38 X^^orth, E:ange 12 East, in the Desplaines Eiver, ten feet below the northwest pier and eighty feet from the north- west abutment of wagon bridge over the Desplaines Eiver at AVillow Springs, Lyons Township, Cook County, Illinois. Depth of water 3.5 feet. Boring made July 9th, 1889. 1846 “Boring Xo. 50, located in the Desplaines Eiver, one thou- sand feet east and twenty-five hundred feet south of the north- west corner of Section 5, Township 37 Xorth, Eange 12 East, Palos Township, Cook Countv, Illinois. Depth of water six feet. Made July 12th, 1889. " , ^ “Boring Xo. 51. Located in Desplaines Eiver three hun- dred feet north and thirteen hundred feet east of the south- west corner of Section 6, Township 37 Xorth, Eange 12 East, Palos Township, Cook Countv, Illinois. Depth of water eight feet. Taken July 15, 1889. “Boring X”o. 52. Located in Desplaines Eiver, 100 feet south and 1,300 feet west of the northeast corner of Section 12, Township 37 X^orth, Eange 11 East, on the line between Dow- ner’s Grove Township, DuPage County, and Lemont Town- ship, Cook Countv, Illinois. Depth of water 8.7 feet. Taken Julv 17, 1889. “Boring X"o. 53. Located in the Desplaines Eiver, 1,600 feet east and 1,400 feet, south of the northwest corner of Section 12, Township 37 North, llange 11 East, on the line between DnPage and Cook Counties, Illinois. Depth of water five feet. Taken July 20th, 1889. 1847 ''Boring- No. 54. Located in Desplaines Biver, 300 feet • west and 2,300 feet north of the southeast corner of Section 11, Township 37 North, Range 11 East, on the line l)etween Dn Page and Cook Counties, Illinois. Depth of Avater 7.1 feet Taken July 23, 1889. "Boring No. 55. Located in Desjdaines River, 2,400 feet west and 700 feet north of the northeast corner of Section 11, Township 37 North, Range 11 East, on the line between DuPage and Cook Counties, Illinois. Dei)th of water 7 feet. Taken July 25, 1889. "Boring No. 56. Located in the Desi)laines River, 400 feet south and 600 feet east of the northwest corner of Section 14, Township 37 North, Range 11 East, on the line between DuPage and Cook Counties, Illinois. Depth of water 8.5 feet. Taken July 25, 1889. "Boring No. 57. Located in the Desplaines River, 1,800 feet south and 1,500 feet west of the northeast corner of Section ,15, Township 37 North, Range 11 East, on the line between DuPage and Cook Counties, Illinois. ])epth of water 8 feet. Taken July 30, 1889. "Boring No. 58. Located in Des])laines River, 1,700 feet east and 2,200 feet north of the southwest corner of Section 15, Township 37 North, Range 11 East, on the line between DuPage and Cook Counties, Illinois. Depth of water six feet. Taken July 30, 1889. 1848 "Boring No. 59. Located in Desplaines River, 1,000 feet north and 500 feet west of the southeast corner of Section 16, Township 37 North, Range 11 East, on the line between Dn Page and Cook Counties, Illinois. Depth of water 11.5 feet. Taken August 1, 1889. "Boring No. 60. Located in the Desplaines River, 2,600 feet east and 50 feet north of the southwest corner of Section 16, Township 37 North, Range 11 East, on the line between DuPage and Cook Counties, Illinois. Depth of water 10.4 feet. Taken August 1, 1889.’^ . 1849 Counsel eok Complainant. We now offer from this same report a table. A list of merchants’ steamboats navigating on the Mississippi Rnmr and its tributaries with a depth of less than seven feet. We don’t want to put those in, your Honor, but only such portion of them as show boats drawing less than three feet of water, three and less. Counsel eok Defendant. We object to it as incompetent, im- material and irrelevant. 656 The Court. Your purpose is to show that there are boats draw- ing less than three feet of water that are used in commercial life. Counsel for Complainant. Yes, that is the point. 1850 The Court. For that purj3ose I think it is admissible. Thereupon complainant read as follows : “No. 7, name Abner Gile, gross tonnage 124.18, net tonnage 124.18, length of boat 110 feet, breadth 21 feet, depth 3 feet; Avhere built, LeClaire, Iowa; home port Galena, Illinois. No. 13, name Advance, gross tonnage 82.83, net tonnage 59.79, length 70, breadth 18, depth two feet; where built, Madi- son, Arkansas; home port, Memphis, Tennessee. No. 14, name Aggie, gross tonnage 88.57, net the same, length 92.4, breadth 20.4, depth 3 feet; where built, Manches- ter, Ohio; home port, Kansas City, Missouri. No. 26, name Alpha, gross tonnage 56, net same, length 121 feet and three-tenths, breadth 21, depth 2.7 ; where built, Jefferson, Texas; home port. New Orleans, Louisiana. 1851 No. 52, name Belgrade, gross tonnage 89.26, net the same, length 96 feet, breadth 18 feet, depth 2.5; where built, Vin- cennes, Indiana; home port, Evansville, Indiana. No. 56, Belle Crooks, gross tonnage 78.43; net tonnage the same, length 91, breadth 22, depth 3; where built, Jeffer- sonville, Indiana; home port. New Orleans, Louisiana. No. 68, name Bessie Siler, gross tonnage 54.42, net tonnage 49.38, length 93, breadth 16, depth 3; where built, Harmar, Ohio; home port. Wheeling, West Virginia. No. 78, name Bob Henry, gross tonnage 80.24, net 55.44, length 91.4, breadth 16.6, depth 2.4; where built. Charles- ton, ^Y. Va.; home port. Wheeling, West Virginia. No. 81, name Border City, gross tonnage 96.96, net tonnage 88.86, length 108, breadtl/ 21, depth 2.5; where built. Fort Smith, Arkansas; home port, Memphis, Tennessee. No. 82, name Boston, gross tonnage 70.77, net tonnage 57.10, length 65, breadth 16, depth 2.5 ; where built, Pittsburg, Penn- sylvania ; home port, Pittsburg, Pennsylvania. ]852 No. 86, name Bright Star, gross tonnage 71.52, net tonnage 41.66, length 89.6, breadth 18.7, depth 2.8; where built. Calico Bock, Arkansas; home port, Memphis, Tennessee. No. 88, name Buckeye, gross tonnage 69.62, net tonnage the same, length 102, breadth 16.4, depth 3; where built, Feed’s Landing, Minnesota; home port, LaCrosse, Wisconsin. No. 91, name Burnside, gross tonnage 100.45,- net tonnage the same, length 114.6, breadth 20.4, depth 3; where built, Hannar, Ohio; home port, MJieeling, West Virginia. No. 95, name C. C. Martin, gross tonnage 67.78, net tonnage the same, length 103.2, breadth 18.3, depth 3.9; where built, Harmar, Ohio; home port. Wheeling, West Virginia. No, lOo, name Caney Port, gross tonnage 8o.90, net tonnage the same, length 126, breadth 19, depth 2; where built, Pa- ducah, Kentucky; home port, New Orleans, Louisiana. No. 108, name Carrie M. Kraft, gross tonnage 81.16, net tonnage the same, length 102, breadth 20, depth 3; where built, Parkersburg, West Virginia; home port, Memphis, Tennessee. 1853 No. 135, name Clara, gross tonnage 60.95, net tonnage the same, length 87, breadth 14, depth 2.5; where built, Leon, West Virginia; home port. Wheeling, West Virginia. No. 136, name Clara Belle, gross tonnage 71.48, net tonnage 56.66, length 100, breadth 18.8, depth 2; where built. Point Pleasant, W. Va.; home port. Wheeling, West Virginia. No. 147, name Cora, gross tonnage 75.18, net tonnage the same, length 105, breadth 22, depth 2.8; where built, Pittsburg, Pennsylvania; home port, Cincinnati, Ohio. No. 152, name Crescent, gross tonnage 82.93, net tonnage the same, length 106, breadth 18, depth 3; where built, Letart Iktlls, Ohio; home port. New Orleans, Louisiana. No. 155, Crusader, gross tonnage 302.07, net tonnage 186.77, length 138.8, breadtli 22.3, depth 2.9; where built, Nashville, Tennessee; home ]mrt, Paducah, Kentucky. No. 161, name B. T. Watson, gross tonnage 80.45, net tonnage 80.45, length 99, l)readth 17, depth 2.6; where Ituilt, Pittsburg, Pennsylvania ; home port, Pittsburg, Pennsylvania. 1854 No. 182, name Dyersburg, gross tonnage 73.08, net tonnage the same, length 93, breadth 18.4, depth 3 ; where built, Dyers- burg, Tennessee; home port, Memphis, Tennessee. No. 186, E. T. Holman, gross tonnage 102.48, net tonnage 71.59, length 100, breadth 20, depth 3; where built, Nash- ville, Tennessee; home port, Paducah, Kentucky. No. 199, name Eli, gross tonnage 140.25, net tonnage 120.25, length 106, breadth 21.5, depth 2.5; where built. Little Eock, Arkansas; home port, Memphis, Tennessee. No. 201, name Ella, gross tonnage 284.70, net tonnage 184.70, length 148, breadth 28, depth 2.5; where built, Jeffersonville, Indiana; home port,' Memphis, Tennessee. No. 216, name Experiment, gross tonnage 62.35, net tonnage 34.99, length 106.5, breadth 16.2, depth 3; where Wit, Evans- ville, Indiana; home port, Evansville, Indiana. No. 226, name Prank Preston, gross tonnage 61.14, net ton- nage the same, length 103.5, breadth 19.3, depth 2.9; where built, Catlettsburg, Kentucky; home port, Cincinnati, Ohio. 1855 No. 231, name Ereedrick, gross tonnage 82.51, net tonnage the same, length 96.4, breadth 14.3, depth 3; where built, St. Louis, Mo.; home port, St. Louis, Mo. No. 234, name C. B. Montieth, gross tonnage 69.03, net ton- nage 62.91, length 103.4, breadth 18.2, depth 2; where built. Long Beach, West Virginia ; home port. Wheeling, W. Va. No. 341, name J. W. Mills, gross tonnage 86.98, net tonnage 658 Boats Drau'ing Less Than 3 Ft. of Water. the same, length 109.7, breadth 22.2, depth 3; where built, Paducah, Kentucky; home port. Galena, Illinois. No. 360, name Jimmie B. ; gross tonnage 58.32, net tonnage the same, length 97.3, breadth 20, depth 2.3; where built, Pt. Pleasant ; home port, Vicksburg, Mississippi. No. 390, name Josephine Spengler, gross tonnage 104.50, net tonnage the same, length 106, breadth 25, depth 3 ; where built, Vicksburg, Mississippi; home port. New Orleans, Louisian^. No. 397, name Julian Gracey; gross tonnage 81.71, net ton- nage the same, length 100, breadth 22, depth 2.8; where built, Clarkesville, Tennessee; home port, Paducah, Kentucky. 1856 No. 417, name Leroy, gross tonnage 66.44, net tonnage 48.17, length 60, breadth 14, depth 2.7 ; where built, Greenville, Mississippi; home port. Memphis, Tennessee. No. 420, name Lillian, gross tonnage 91.75, net tonnage the same, length 124.5, breadth 21.3, depth 3; where built, Ash- land, Kentucky; home port, Wheeling, West Virginia. No. 424, name Lion, gross tonnage 71.96, net tonnage the same, length 100, breadth 15.6, depth 3; where built, Lyons, Iowa; home port, LaCrosse, Wisconsin. No. 433, name Lizzie Bayliss, gross tonnage 110.05, net tonnage the same, length 117, breadth 21, depth 3 ; where l)uilt, Wellsville, Ohio; home port, Vicksburg, Mississippi. No. 442, name Lucy Robertson, gross tonnage 103.84, net tonnage 81.89, length 95 feet, breadth 20.5, depth 2.9; where built, Johnsonville, Tennessee; home port, Padudah, Ken- tucky. No. 463, name Mary Ruble, gross tonnage 65.73, net tonnage the same, length 100, breadth 16.7, depth 3 ; where built, Carrs- ville, Kentucky; home port, Cincinnati, Ohio. 1857 No. 464, Mary C. Cantwell, gross tonnage 64.73, net ton- nage the sam'e, length 100, breadth 28, depth 3; where built, Pittsburg, Pennsylvania; home port, Pittsburg, Pennsylvania. No. 474, name Mike Davis, gross tonnage 112.28, net tonnage 78.92, length 96, breadth 17, depth 3; where built. Wheeling, W. Va.; home port, Paducah, Kentucky. No. 479, name Minnie H. ; gross tonnage 130.24, net tonnage the same, length 133, breadth 25, depth 3; where built, Reed’s Landing, Minnesota; home port, St. Paul, Minnesota. No. 510, name Novelty, gross tonnage 63.14, net tonnage 49.95, length 76.4, breadth 16.4, depth 3; where built, Manchefs- ter, Ohio; home port, Vicksburg, Mississippi. No. 513, name Octavia, gross tonnage 95.23, net tonnage 62.84, length 76.5, breadth 16.5, depth 3; where built, Green- ville, ^Mississippi ; home port, Memphis, Tennessee. No. 516, name Olivette, gross tonnage 130.01, net tonnage 94.44, length 120, breadth 22, depth 3; where built, Harmar, Ohio; home port, Cincinnati, Ohio. No. 537, name Phil Scheckel, gross tonnage 108, net tonnage 659 the same, length 114, breadth 20.5, depth 3; where built, Wau- beck, Wisconsin; home port. La Crosse, Wisconsin. 1858 No. 541, name Pinhook, gross tonnage 160.36, net tonnage 90.60, length 94, breadth 18, depth 3 ; where built, Chattanooga ; home port, Chattanooga, Tennessee. No. 546, name Prince, gross tonnage 107.88, net tonnage the same, length 120, breadth 21, depth 2.8; where built, Harniar, Ohio ; home port. Wheeling, W. Va. No. 550, name E. B. Kendall; gross tonnage 70, net ton- nage 70, length 105, breadth 18, depth 3; where built, Pitts- burg, Pennsylvania; home port, Pittsburg, Pennsylvania. No. 552, name K. E. Philips, gross tonnage 84.06, net ton- nage 79.60, length 110.8, breadth 20, depth 2.3; where built. Freedom, Pa.; home port. Wheeling, West Virginia. No. 554, name E. L. Cobb, gross tonnage 365.33, net tonnage 204.56, length 145.1, breadth 28.5, depth 3; where built. Little Eock, Arkansas; home port, Memphis, Tennessee. No. 560, name Eeindeer, gross tonnage 56.36, net tonnage the same, length 103, breadth 19, depth 3; where built, Terre Haute, Indiana; home port, Louisville, Kentucky. 1859 No. 573, name Eob Eoy, gross tonnage 100.02, net tonnage 84.63, length 119, breadth 19, depth 2.9 ; where built, Lafayette, Indiana; home port, Kansas City, Missouri. No. 577, name Eoy Lynds, gross tonnage 64.19, net tonnage the same, length 101, breadth 23, depth 3; where built, Jetfer- sonville, Indiana; home port, St. Joseph, Missouri. No. 578, name Eozelle, gross tonnage 62.46, net tonnage 50.35, length 110, breadth 19, depth 3; where built. Charles- ton, W. Va. ; home port. Wheeling, W. Va. No. 581, name S. P. Pond, gross tonnage 86.34, net tonnage 56.27, length 75, breadth 15.5, depth 3; where built, LockliarCs Landing, Arkansas; home port, Memphis, Tennessee. No. 596, name Scout, gross tonnage 55.68, net tonnage the same, length 85, breadth 15, depth 2.8; where built. Freedom, Pennsylvania; home port, Pittsburg, Pennsylvania. No. 638, name Tom Spurlock, gross tonnage 93.05, net ton- nage 86.30, length 114.3, breadth 22.9; where built, Ashland^ j" Kentucky; home port, Cincinnati, Ohio. 1860 No. 642, name Two Brothers, gross tonnage 69.13, net ton- nage 48.13, length 91.9, breadth 16, depth 2.5; where built. Pittsburg, Pennsylvania; home port, Pittsburg, Pennsylvania. No. 643, name Undine, gross tonnage 72.90, net tonnage the same, length 112, breadth 30, depth 2; where built. Mound City, Illinois; home port, Kansas City, Missouri. No. 651, name Vienna, gross tonnage 73.17, net the same, length 89.6, breadth 24, depth 2.3; where built, Plattsmouth, Nebraska; home port, St. Louis, Missouri. No. 663, name W. L. Norton, gross tonnage 63.01, net ton- G60 nage 43.60, length 67.5, breadth 12, depth 3; where built, Le- noirs, Tennessee; home port, Chattanooga, Tennessee. No. 665, name W. P. Bishop, gross tonnage 69.09, net ton- nage 48.09, length 93.9, breadth 16.5, depth 2.5; where built, Pittsburg, Pennsylvania; home port, Omaha, Nebraska. No. 668, name Water Lilly, gross tonnage 141.17, net ton- nage 89.96, length 112, breadth 21, depth 3; where built, 1861 Knoxville, Tennessee; home port, Chattanooga, Tennessee. No. 678, name William Wagner, gross tonnage 52.25, net tonnage the same, length 100, breadth 17, depth 2; where built, Pittsburg, Pennsylvania; home port. Wheeling, West Vir^ ginia. And thereupon complainant offered and read in evidence as fol- lows : Document No. 263, House of Eepresentatives, 59th Congress, First Session, report upon the survey, with plans and estimates of cost for a navigable waterway fourteen feet from Lockport, Illinois, ly way of Desplaines and Illinois Eivers, to the month of said Illinois Eiver, and thence by way of the Mississippi Eiver to St. Louis, Missouri, and for a navigable waterway of seven and eight feet depth, respectively, from the head of navigation of Illinois Ei\^er at La Salle, Illinois, through said river to Ottawa, Illinois. By the Mississippi Eiver Commission covering the sec- tion below the month of the Illinois Eiver and by a board of officers of the Corps of Engineers, United States Army, covering the section above the month of the Illinois Eiver, December 19th, 1905. 1862 Page 16. ‘‘Plan, Lockport to Utica. Between Lockport and Utica, five miles above LaSalle, the fall of the water surface is about 136 feet in a distance of 63.5 miles, while between Utica and Grafton the fall is but 33 feet in a dis- tance of 229.5 miles (see profile sketch hereto attached.) The method of improvement for the former must be by locks and dams. In general terms two routes are available, viz : the river route and that of the old Illinois and Michigan Canal. The board decided to adopt the river route because the greater width would afford better facilities for naviga- tion, and because subsequent enlargement could be executed at less cost and without interfering with navigation; also because a waterway by that route could be constructed at less cost in the first instance and the annual charges for main- tenance would be less. In reaching this conclusion a careful 1863 investigation was made of the velocities to be expected at the higher stages in various parts of the reach. It was found that they would be prohibitive only at Marseilles and at GGl Joliet. At each of these places a canal about three miles long is proposed. At several other places for short dis- tances velocities of 3.5 miles to 4 miles per hour may be expected, but, although somewhat obstructed, they are not pro- hibitive, and as the floods which cause them are of short dura- tion and occur only at rare intervals, the inconvenience is believed to be of small importance.’’ Page 40. ^‘Velocity of current in the upper Illinois and lower Desplaines River during extreme high water. In order to ascertain whether the currents which obtain in the upper Illinois and lower Desplaines Rivers during extreme high water would prohibit navigation at such times, velocities were computed at 16 points between Utica and Joliet for the high- est water on record for each station. These results, which are shown in the following table, are based upon the following field measurements, and are entirely independent of any as- sumptions or theories. The high water elevations were taken from the high water line on our general profile, which were 1864 platted from actual guage readings and reliable readings and reliable high water marks. The areas of the discharging sections were obtained by platting and computing the cross sections from soundings and stadia elevations taken in the field. ^ ^ ^ The discharges for the sections one mile below the mouth of the Kankakee River, at the Kankakee cut-off, and 1/4 mile below the foot of Treat’s Island, were obtained from discharge curves platted from measurements taken at El- gin, Joliet and Eastern Railroad bridge at the Kankakee cut-off, and 2,000 feet above Jackson Creek, respectively. For tlie sections in Joliet and If miles below the Brandon bridge the discharges were derived from tables showing the discharge of the Drainage Canal and the Desplaines River, prepared for each day of the year by the Sanitary District of Chicago.” Then follows the table in detail. 1865 Under the heading of Kankakee Cut-off, velocity of Kan- kakee Cut-off 2J miles per hour, 1/4 mile below foot of Treat’s Island, If miles below Brandon bridge, 2f Jefferson Street bridge, Joliet 7.4 miles per hour. ‘‘Prom Seneca to Patterson Island, at the head of Lake Joliet, a distance of 32.7 miles, the maximum velocities vary from 2.1 to 3.1 miles per hour. There are two exceptions 1866 to this, viz., at the mouth of the Desplaines River and at Treat’s Island, where it is impossible to compute the velocity, as there are not sufficient data on hand. It would probably not exceed four miles per hour, at either place for a distance of about one-half mile. Proceeding up stream from 662 Ijake Joliet the velocity increases up to Dam No. 1 at Joliet. At the Jefferson Street bridge the computed velocity is 7.4 miles per hour for the flood of 1904. (Counsel for Complainant. I think there is no objection to stating to the Court that this flood of 1904 was the biggest flood for a great many years and consequently of the greatest velocity.) ^‘From the preceding investigation it has been decided that the velocities, which obtain during extreme high water, are prohibitive only below the Marseilles and Joliet dams. Under the adopted project a canal about 3 miles long has been pro- vided along each of these sections. The velocity from the Marseilles dam to Seneca, viz., 3.5 to 4.1 miles per hour, is obstructive to navigation but not pro- hibitive, and as these floods occur only at rare intervals and are of short duration, it is not considered necessary to leave the river bed at this section. The same remarks apply to the section just below the proposed canal at Marseilles, and to the short sections at the mouth of the Kankakee Eiver and at Treat’s Island.” 1S67 Whereupon counsel for complainant offered and read in evidence the deposition of Urias Bowers, followed by coun- sel for defendant reading the cross-examination. (For rulings on same see Abstract of Depositions, supra ^ p. 421.) Whereupon counsel for complainant offered and read in evidence the deposition of Mrs. Eliza P. Jones, followed by counsel for defendant reading the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 461.) Whereupon counsel for complainant offered and read in evidence the depositions of Samuel W. Jones, followed by counsel for defendant reading the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 463.) Whereupon counsel for complainant offered and read in evi- dence the deposition of Frank Paddock, followed by counsel for defendant reading the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 469.) 1868 William H. Bing a witness for complainant, testified as follows: Direct Examination. 1869 My name is William H. Bing. I live in Cincinnati, Ohio. I am a steamboat captain and pilot. I have been engaged in steamboat work and business since 1873. I was licensed by the Government as a pilot on the Ohio and its tributaries and have continuously followed the business of navigating the Ohio river and its tributaries from the year 1873 up to last December. The trib- utary streams of the Ohio which I have navigated are the Great Kanawha Eiver and Big Sandy Eiver, and some on the Kentucky Eiver, and have navigated the Ohio all this time, almost alto- gether. Not very much on the other rivers. 1870 The run which I have made on the Ohio Eiver most fre- quently was from Pomeroy, Ohio, to Louisville, Kentucky. Eeferring to the Ohio Eiver and the depth of that river at high water, — I have seen it seventy-one feet, at Cincinnati; and I have seen the river as low as twelve inches; twelve to fourteen inches, near Pomeroy, Ohio, — ^between Pomeroy and Ironton. There are several shoal places there that go down to about twelve inches; I don’t just recollect what year it was now; it was years ago. It is a frequent thing for the Ohio Eiver to have those very high floods and those very low water periods, — every year. Most 1871 every summer we have about as low as three feet, and some- times under the three-foot stage. When I said twelve inches, I meant twelve inches only in chutes, — what we call chutes, — in the deepest part of the shoal place. A boat going down through that river runs over the one foot of water. They cannot 1872 use the big boats, and when we cannot use the larger boats we generally use the steamboats used in the small streams. They navigate and carry freight on those small stages of water. It is not, maybe not more than once in eight or ten years, when it gets that low; but I have steamboated on little boats when the water was only twelve inches in the river. We carry light freight and passengers. You couldn’t carry over eight or ten tons on that low water you know. The little boats would probably draw Bing, — Direct Exam. — Continued. 664 five or six inches; they were not built very wide, you know. 1873 The dimensions of these boats that would navigate on the twelve inches of water and carry freight were about 100 feet long, 90 to 100 feet long, and. about 16 to 18 feet wide, with a little fiat bottom, square bow, — or the kind of boats on the Ohio Eiver. They have put in dikes and dams, which helped the channel considerably from what it was. I ran over it there before the im- provements were made. The 12-inch water was before the im- provements had been made. On the Kanawha Eiver the dimensions of the boats which 1874 we used were something like the boats that were in the Big Sandy Eiver, — the ones I have already described; something of that class. I have navigated that kind of boats on the Kanawha Eiver, — about ninety to 100 tons being their capacity. I have seen it as low as ten to twelve inches on the Kanawha; I have been on small boats there and could navigate on that twelve inches and carry light freight. We generally have low water, though 1875 each year, but probably not that low. When it got down to two feet we would call it low water. Before they had improvements there, it did go as low as that annually. It got as low as six inches at Charleston, West Virginia, on the gauge, but the gauge is always considered a little less than the water 1876 is. About ten inches in the river. It would run ten inches 1878 to three feet at low water. From 18 inches and 2 feet — • nlong there — I have run there when it was that low. I made on the Kanawha in the years that I was running on it about a couple of trips a week, for three months each year. 1879 The most of my work from — over the Kanawha was on tow- boats and took up empty barges ; just shoved the barges up to the mines. They did not draw over ten inches, six or eight inches. We loaded the barges to six feet or six to seven feet. Loaded them vdth coal, ten to twelve thousand bushels of coal on the barge, — and we would bring out six or eight or ten of tk.em, one steam.boat. 1880 I have run on passenger boats up there that were about 150-ton boats, about the largest sized boats than run in the KanaAvha Eiver,— when I was working there, in all kinds of stages, from 15 feet to 20 feet, during that time. The boat that I G65 was on would cany, I suppose, very near 200 tons, all of 100 tons, on three feet of water. I have seen and used boats on 1881 the Kanawha Kiver whose capacity would be less than 100 tons ; and size about 90 to 100 feet long and 16 to 18 feet wide, — about that sometimes. On three feet of water they would carry from thirty to forty tons. Boats of that size and tonnage were of frequent occurrence upon the Kanawha Kiver engaged in commerce. When I steamboated there, they had a great many what they call chutes there, strong currents, walls built up, and the channel close to the walls, and the current I suppose would be an eiglit or ten mile current. I navigated through that current, and the capacity of the boat 1882 would be about ninety tons, and the boat was about half- loaded. 1883 As to how the current of eight to ten miles an hour affected the operation of navigating boats with freight, going down the current takes the boat along; all we have got to do is keep it in the channel ; going upstream it is pretty slow. Sometimes we have to lay in line and warp through those strong places when the river is down low. We take and lay an anchor above over the shoals and put a line to it, and have a nigger running by steam; make a capstan and wind them. We call a capstan, in local parlance, 1884 a ‘‘nigger.” The boat was loaded with this half load of freight when hauled up in this manner. Q. I will ask you to state. Captain Bing, to take the case of a river, which for a period of from four to five months each year, exclusive of the time when it was frozen over, and exclusive of the time of extreme low water, presented a depth which would range from fifteen to twenty inches of water in the shallows, and up to ten feet and more in other parts; and in a channel which would range from 250 feet wide up to a quarter of a mile wide, and which had a current which varied from an almost imperceptible current in some of the wide spots, where it was a quarter of a mile wide, and ten feet deep, to a current much of the way up to two and a half miles an hour, and which would increase to three and a half miles an hour, and in one or two places to five miles, and in one or two places to seven and seven and a half miles an hour; the swiftest current in one place being in the shallow 666 part and in another place where it was somewhat deeper, but not up to the large depth, — I will ask you to state whether or not in your judgment and opinion, as a navigator, that stream 1885 would be a navigable stream, assuming that it had such windings and bends as are indicated in the river which is shown upon the McCullough plat which is before you here! 1893 I will add to that, that you may include in the conditions, that there is a stretch of nearly a mile where it passes an island where the width is less than 250 feet, and in one part goes down to nearly sixty feet; that the area of the imperceptible cur- rent, or very low current, is in a strip of the river between five and six miles, and where the river runs very nearly straight without bends, and is about a quarter of a mile wide, and that there is another place in the river where the current is very sluggish for about a mile, where it goes around a rather large ])end and where the river is from three to six hundred feet wide as it goes around the bend; that the swift current of seven and a half miles is confined to an area not exceeding a mile or a little more, less than two miles in length. A. I would say that it would be a navigable stream. Counsel for Complainant. What depth would you say, as a navigator, would be sufficient for the carrying on of navigation upon a stream of these conditions! 1894 The Court. You mean for commercial purposes! Counsel for Complainant. Yes, sir. A. As low as three feet, I should think. Q. You may state whether or not, upon a stream of these gen- eral conditions, the presence in the stream of different places at stretches of from a quarter of a mile to a mile where the water would be in low water as low as fifteen inches deep, for the period of a month or six weeks in each year, would deprive the stream of its character as a navigable stream. (Objected to as asking for a legal conclusion, navigable stream, rather than whether in fact it could be navigated for commercial purposes.) Counsel for Complainant. I will adopt what you say: That a stream having those conditions would be in fact navigated for commercial purposes. A. Yes, sir, it could. Cross-Examination. 1895 I am sixty years old. I first began to navigate the Ohio ' Eiver in about 1870, when about twenty-two years old. That is when I went on to learn the river. It took me three years to learn it. I got my license in 1873. After I obtained my 1896 license I was a pilot on a boat for a while until I knew how to man a boat. When I first took command of a boat, I guess it was about five years after I was piloting. I think it was about that; before I took out a captain’s license, about 1879 or 1880, along there, about that I guess; I don’t recollect the year. I obtained command of my first boat about 1879 or 1880, on the Ohio Eiver, between Syracuse, Ohio, and Louisville, Kentucky. I was first on one boat and then on another. I was not on one reg- ular boat all the time. I had charge of a boat as long as four years at a time. 1897 The first boat was a tow boat, towing coal and salt, — towing barges filled with coal, — ^what we would call a tow- boat. I would not call it a tug. She had about fifteen or eighteen- inch cylinder, fifteen-inch cylinder, and five and a half stroke, five and a half foot stroke ; all towboats are stern-wheels. In the water when light she drew about thirty inches. I operated her about two and a half years, that is in one time, running time. I have been on, I expect, fifty ditferent boats or more. 1898 It has been thirty-five years since I got my license, about, and I have been working on the river most of the time until last December, I have not been on the river since December. All the boats that I have been captain of were tow boats. I have piloted on passenger boats, but I have never had charge of one. As to acting as pilot on passenger boats, the longest at one time was about a year. Those boats operated between Charleston, Vir- ginia, and Cincinnati, Ohio, on the Kanawha Eiver, and the Ohio Eiver together, — the steamer Boone. I was thirty-five years on the Ohio, and I guess about three 6G8 Bing, — C ross-Exam. — Contimied. years on the Kanawha Eiver; that is, I was in the Ohio and Kanawha together on boats that run np the Kanawha Eiver. My license went to the head of navigation on the Kanawha, 1899 Canalton, about eighty miles from the month of the Kanaw- ha. The character of the boats I had charge of running in the Kanawha Eiver was mostly towboats. Brought np empty boats and brought out coal from the mines. The barges carried from ten to twelve thousand bushels, they would draw about six feet or six and a half, along about that. We always put our fuel on the steamboats, what we wmuld use on the trip, and put them down to about three and a half or four feet, generally. It would depend on the class of boat it was. If it was a small boat it would not carry very much coal and it was not built as deep in the hold as the large ones. The Ohio Eiver I navigated as far up as Syracuse, Ohio, 1900 about twenty-five miles above the mouth of the Kanawha Eiver. It is near Pomeroy, Ohio, about seven miles above Pomeroy, or six miles. Below Pomeroy there were some shoals there, at Eight-mile Island, it is calledi. The extent of those shoals in the river, in length, were about a quarter of a mile, I sup- pose ; the worse part of it, not over a quarter of a mile, I think. I have taken tow boats up with empty barges up over those shoals in low water. The barges, of course, were light and would not draw over six of eight inches; steamboats would draw 1901 thirty inches or more. The tow boats drew some thirty inches ; of course, smaller boats were lighter draught. I have taken all kind up over those shoals on low water; taken barges partly loaded. They could go over the shoals without stopping. The water at that time was three or four feet deep, along there. I have taken small boats up. We carried passengers and freight on, when there was ten to twelve inches in the river, over those shoals; as low as ten inches I have taken on one particular 1902 boat. It very seldom got down to twelve inches, very seldom. The usual depth during the dry season was about twenty-six inches, or twenty-eight, along there. I can remember one season wheu it got as low as 15 inches. It was along in the ’70s; I don’t recollect the year at all. I have never seen it that low since. 1902 Suppose it were only twelve to fifteen inches deep all the way from Pomeroy to Louisville. Small boats could rim there at that stage, and it would be possible, in my judgment, to carry on profitable commercial navigation; I know it has been profitable, anyway. Being asked: ‘^Did you ever know a time when the river was twelve to fifteen inches deep all the way from Pomeroy to Louis- ville, Kentucky,” Captain Bing replied: ‘‘Not all the way; no, sir. ’ ’ 1904 Captain Bing further testified that there is a place above Cincinnati, — there was before they improved the river there, that it got as low as the shoals at Pomeroy, a place called Nine- mile, and Eight-mile, and Four-mile; they are all strung along there together. I did navigate over those places before the river improvements. It was a sand' bottom and we had a good deal of trouble there. As to the average depth of the water there during' the dry season, I have seen it down to twenty inches, and two feet; and along there, there is a stretch that is all shoal, bad places, of about five or six miles, from Four-mile to Eight or Nine-mile. 1905 Being asked if a man had a small boat that only drew six inches of water, he could run it over those shoals, he replied: “They did do it. There were lots of them around. Small boats that drew eight or ten inches.” The distance between Pomeroy and Cincinnati was two liundred and fifty miles, I believe it is estimated. I went up the river 1906 with tows that didn’t make over a mile and a half an hour and I went up with some sized tows, with a different stage of water that would make four and a half or five miles an hour. It would depend altogether upon the tow you had and the stage of the water. When our tow and barge were light, we would make five miles an hour; when the barge was loaded, the tow was loaded, we would not make more than from one to two miles an hour. We very seldom tow our loaded barges up the stream. If we do it is not very much. I say we make as high as four and a half or five miles an hour with a medium sized tow of empty barges going up the river. 1907 As to the kind of passenger boats operated by me for a time on the Ohio Eiver, — they carried passengers and freight; 670 B i ng, — C ross-Exam . — Con tin ue cl. stem wheelers, flat bottomed boats, somewhat similar to the boats used on the Mississippi Eiver. They drew, well, from about three to four feet generally. Four and a half some of them; it depends upon the size of the boat. Those passenger boats oper- ated from Cincinnati to Charleston, West Virginia, — the boat I was on. Charleston is on the Kanawha Eiver, about the mouth of the Kanawha Eiver,— sixty miles they call it. The size 1908 of those passenger boats was about 300 tons, what she car- ried. I would not be positive. Something like that. She drew very nearly thirty inches light. I have been on a good many others, just for a short time. There would be trips down there when I was only on a boat for three or four or five days, and then I would be on another one; what you would call tripping. I have been on a great many at low water season, but not steady, just for trips. They will make twelve or fourteen miles an hour down the stream with the current. It depends upon the stage of the river a good deal, too, that does. Sometimes they will make fifteen miles, if it is a big river may be more. Going up the river they will make six or seven, or eight miles an hour, some ten. 1909 The steamer Boone I was on; she just averaged about eight miles an hour, we always considered she would make about eight miles an hour going up stream, from Cincinnati to Charles- ton. That counted out the landings, too. We had to land our wharf boats and do business. Going up in the Kanawha, I never timed her. I suppose six or seven miles an hour; I would not be positive about that. I have not navigated very much on the Kanawha Eiver since the improvements, about twelve years ago. Locks and dams 1910 were put in, — one near the mouth, about a mile from the mouth, and then there were about eight or nine or ten miles apart, something like that. All the way up to just below Canal- ton, I think there was eight locks, eight or ten, I would not be posi- tive which. There were no canals put in since those improve- ments were commenced. I have been up the river since, hut not to run there regularly. I have been as far as Charleston since, on boats, several times. Since Congress first began the improvement of the Kanawha Eiver, I do not recollect how long it has been. 671 Tliere were locks and dams in tlie river when I operated there, at the head of the river, what is called Paint Creek Lake. 1911 That is below Canalton and above Charleston about ten miles, I think. The sluices spoken of in direct examination are a rock wall built up, right along where the deepest part of the water runs, the channel they call it. I don’t think the Govern- ment put it in. I think some company that improved the Kanawha Eiver in the start, did it. The Government afterwards put the locks and dams in there. That was there long before I ever 1912 was. That sluice T speak of is the one called Ped House, about fort}' miles up from the mouth Kanawha, and about twenty miles below Charleston; I suppose about 150 feet wide, possibly, or 200. I took my towboats with barges up through there. Captain Bing being asked: suppose when a person is going up through a current of that kind, the current always seems a little more swift than it really is, doesn’t it. Captain?” replied, ^^Well, I don’t know about that” and continued testifying as fol- lows : As to the difficulty in taking boats up through that sluice, — sometimes they would have to what you call double-trip, take part of the barges at a time, possibly have so many she would shove on through, take three or four and come back and get the rest and go through this place. We have done that often. Sometimes have to lay a line on the wall and run them up through a little nigger. That is something like the process known 1913 as cordelling; hitch a chain up ahead and pull the boat up. I had to do that at that sluice, only in that low water. That sluice was two or three hundred yards long, I suppose, something like that. I don’t know exactly the length of it, but I suppose it would be two or three hundred yards, something like that. •Being asked : ‘‘Did you ever measure the velocity of the current at that point?” replied in the negative, and to similar questions as to the Ohio, Kanawha and other rivers. Captain Bing further testified: I would think it would be eight or ten miles an hour, the cur- rent, but I don’t know, — that would be my idea of it, gained from the fact that it is quite difficult to get up there with boats. 1914 I did make five miles an hour up the Kanawha Eiver with only one barge in tow. With the barge light, as to cal- 1915 culating or measuring the speed, w^e know the distance on the river, all of it, all pilots ought to know the distance and we always count when we are on watch. We know what the distance is from one point to another. That is the way that our speed, that is the way we get our speed of the boat, what time she is making. Say, I come on at twelve o’clock to-day, I can tell at supper time how far I have come. I know just how many miles I have made in an hour. As to the Kanawha River, I never calculated that at all. I know they could do it; I am satisfied, make five miles an hour up the Kanawha River with one barge, from the mouth to Charles- 1916 ton. I am not guessing at it at all. I never took and meas- ured it, of course. We know the distance and know how many hours we are going while on, and we will average that about so many miles, we consider it. With a tow, I have averaged four miles an hour, and T have averaged seven miles an hour, and five miles an hour; it depends upon the size of the steamboat and the amount of barges we have in tow. You may take a boat, a large steamboat and put on twenty barges to her, she would not make over four miles an hour, while a small boat with three barges would make four miles an hour, or five miles an hour. 1917 I said, with one barge, a towboat will make from five to six miles an hour, but take eight or ten or fifteen barges, she won’t begin to make anything like that. Maybe three miles, or three and a half, something like that; depends upon the stage of the water. One of those tow boats going without any barges will make eight or ten miles an hour upstream; some make more than that; some will make twelve. Lots of them that I have been on made that time ; yes, sir. H. F. Frisbie was one towboat. She would make twelve or fourteen miles 1918 an hour up stream without any tow. Well, an ordinaiy tow, I have made five miles an hour with her, witli empty barges up stream. The Frisbie was owned at Cincinnati. She ran to St. Louis part of the time and ran to Pom- eroy. Hedwig owned her. She went out of commission three or four years ago, maybe longer, I do not know just exactly the time. Mr. Hedwig lives in Kentucky near Cincinnati, near Dayton, Ken- tucky. I don’t know anything about the engineering at all. I have heard the expression used, slopes of a river, but I don’t know any- thing about it. As to the fall of a stream, I don’t know anything about it, it is out of my line. As to whether a river could be navigated for the purposes of commerce that had a fall of 90 feet in a distance of 18 miles, I should not hardly think so. If you assume that a portion of that river 18 miles in length is on a level, say there is a six mile stretch of practically level water, or a very gentle slope, and that the remainder of this fall of 90 feet is in the balance of the river, that that stream could be used profitably for commercial purposes in navigation, there would have to be improvements made on it. 1920 Valentine L. Schlink, a witness for complainant, testified as follows : Direct Examination. My name is Valentine L. Schlink. I will be 78 years old in August of this year. I live in Peoria. I have lived there since December, 1844. I know Mr. S. DeWitt Drown in Peoria. I knew him since sometime in the spring of 1845 ; every day I suppose, from there on to 1848. He was surveyor. He also wrote for the newspapers. He wrote for the Gazette awhile, published several directories. I was clerking in the post-office 1921 then. In those days they did not have free delivery. Men used to come to the post-office for their mail. He came and got his mail there at the office. I used to wait on him at the post-office. My acquaintance with him did not cease when I left the post-office. I knew him until he died, or about the time he died. I think he died in the latter part of 1857 or the forepart of 1858 ; I would not be positive about the date exactly. Schlinky — Direct Exam. — Contimied. (Book handed to witness.) I had a copy of this work myself at one time; I haven’t got it now. That is one of the Drown 1922 directories and histories that I referred to. As to the repu- tation and standing of that hook at the time when it was published and from that time forward, in the City of Peoria, for authenticity, accuracy and reliability, — it was good. I am seventy-eight, born about 1830. In 1857 I would have been 27 years old. Mr. Drown was 25 years older than I. He would have been born in 1805. 1923 Cross-Examination. I have talked in regard to the work of Mr. Drown, author of this book, with nobody, as to whom I have heard speak of the work. Judge William H. Fessenden was one man. He was 1924 the man I lived with, and Mr. Hamlin and he talked the mat- ter over, coming up the river here to sell grain, to deliver grain and take back lumber to finish the court-house in Peoria. As to whom I heard talk about Mr. Drown ’s book, in Peoria, they would be so innumerable I could not tell you. I have heard Judge Alls, I have heard Mose Dusenberry speak of it. It was about a year ago since I heard anybody speak about it, — refer to his book, that he said so and so about the Illinois River. 1925 The occasion of that conversation in regard to Drown ’s book was about high water. Besides the persons named, I heard, well, I just cannot tell, but several people anyway speak of it. As to any occasion, any particular time, except the one mentioned, when I heard it spoken of by anybody, I would not be very sure novr, but I know it is the general talk all over town. Everybody refers to Drown ’s book of history. If I stayed here half an hour I might think of a dozen that I cannot think of now. The par- ticular one was the book of M4 that he wrote. As to ever hearing any question raised or anybody say that some statements in Drown ’s book were not true and not correct, I did not; no sir. I never heard that question raised at all. 1926 Well, it was discussed at one time in court there when I was one of the witnesses when that levee business came in court about ’44, but they took the guide to go by. That was not in the Sanitary District case. It was the Central National 675 Bank against the City, or the City against the Central National Bank; I forget which it was, one of them. I never testified in anv of the Sanitary District cases. Re-direct Examination. 1927 This was a book which was in general circulation in Peoria in the ’50s. I have owned one of them, and I guess a great many others have owned them. I know this man, Mr. AYoodcock, the printer. He lived in the premises I used to own; Mr. E. 0. AVoodcock, the old gen- telman ; I knew him in the printing and publishing business. From my acquaintance with Mr. Drown and Mr. AYoodcock, I could say that this book was published by AYoodcock. Re-cross Examination, I know it was published by Mr. AYoodcock, because it says so in the back; yes, sir; and everybody else says so there. 1928 ^‘Did you get one of those books that Drown published!” That question was asked a good many times, I think. And thereupon counsel for complainant read the title page of the book, ^H)rown’s Kecord and Historical View of Peoria, from the Discovery by the French Jesuit Missionaries; in the Seven- teenth Century, to the present time. Also, an Almanac for 1851, calculated for the latitude and longitude of Peoria, Illinois, 40 de- grees, 40 minutes north, longitude 89 degrees 40 minutes west from, the Koyal Observatory at Greenwich; and 12 degrees 40 minutes west from the City of AYashington. To which is added Business Directory of the City, with Business Cards by S. DeAYitt Brown.” Then it is signed with the national coat of arms. Peoria, 111. Printed by F. 0. AYoodcock, Main Street, 1850.’’ Thereupon complainant put the preface in evidence, said pre- face being as follows: ^Hn presenting this number, my second attempt of a ^Peoria Directory,’ or Pecord of Events, &c., I will not dis- guise the gratification it affords me to observe the flattering manner in which my first was received by the public, and the approval of the work (together with my subsequent annual sheet) by distinguished men in our city and elsewhere as it 676 Extract, — Brown’s Peoria. — Continued, found its way abroad. The improvements and additions which have been introduced in this, will, it is hoped, meet with general approbation and insure its continuance of public favor; they will be readily seen by a glance at its contents. ‘^At this time, when the all-engrossing theme of public and private speculation is ‘California Gold’ and the dimes, it may be hazardous in me to introduce this undertaking of a book, to vie with the periodicals of the day, or any of the ‘Otfer- ings ’ with their gold edges or gilded bindings, with the expec- tation of arresting attention in outward appearance, for as the poet has sung — “Dimes and dollars, dollars and dimes. Poverty is the worst of crimes.” “I stand convicted for the want of dimes to make it exter- nally glittering, but ‘all is not gold that glitters,’ neither are all the hooks bound in gilt wortli much more than their bind- ing. I have, however, spared no pains in endeavoring to procure for insertion in my Kecord, all the information which ought to have a place in a work of this kind ; but it is not so 1929 full as I am desirous to have it; such omissions are to be attributed to no lack of energy on my part, but rather to the impossibility of obtaining the desired information. “I have expended some time, all must acknowledge; and the inquiry naturally arises, and I have often been asked, ‘where ao you get those facts?’ I cannot give you the details, but it is enough that you have them, so that they may be trans- mitted to posterity. If the past thirty years, under so many disadvantages, has witnessed the developments now before us, what will the next generation bring forth! If we bear in mind the basis on which the past growth has taken place, reflect on the starting point thirty-one years since, compared with the vantage ground which tve now occupy, can any im- agination in its boldest flight exceed the reality! Will not facts in the future, as in the past, outstrip fancy! For who among our ‘oldest inhabitants’ fifteen or twenty years ago would have dared to predict what we now realize in Peoria! They have become the wonders of history. Could those who first came to Peoria and took up their abode on the banks of our beautiful lake, could they ever have dreamed of a future so glorious for this country and vicinity as that future has since proved! Nor can we, with all the advantages we now enjoy, of commerce and telegraphic improvements, measure the greatness we may attain by the Oquawka Kailroad, plank roads and other improvements in contemplation. Who can tell what we may attain in the next thirty years of Peoria his- tory! Conjecture is staggered at the project, and dares not attempt an estimate. “In collecting these cursory ‘Scraps of History,’ I have ven- tured to present the details of some mining operations in a 677 field but little noticed until recently, (like the gold mines of California), but which with a reasonable amount of patient toil, may be made to yield abundantly. A few there are, how- ever, who yet remain as links between the past and present, — links which are snapping year by year and month by month, and with them are vanishing the historic circumstances of hy-gone days and years, when the prairies and bluffs of the Illinois in and about Peoria were inhabited by the Red Man and on the margin of our beautiful lake, here and there, ^ sol- itary" and alone’ stood the log hamlet of the pioneers in the Mar West.’ ‘^My principal aim in this production is the preservation of the memorials of some of our city’s history, institutions, &c. I have, since the publication of my directory in 1844, annually kept up a synopsis of our improvements by a small sheet under the title of Peoria Annual Record, or BrounPs Sta- tistics. I have now attempted a much more useful |)eriodical in a different form for the convenience of the public and in- tend to continue the publication of similar researches from time to time, annually with an Almanac for each year with a hope also of enlisting others to collect facts and details con- cerning such institutions as remain to be noticed not only- in our city- and county-, but such as will be of use to the citi- zens of our State. The co-operation of any^ one who may- take an interest in matters of this character is solicited in collecting whatever may tend to throw light upon the past as well as to observe authentic memorials of the present con- nected with the Ancient or Modern History- of Peoria, that shall in any- way- tend to illuminate the path and enlighten the labors of the future historian, will be duly- a])preciated. These are the main objects of this work, although other departments have been embodied so as to be in keeping with its title and the wants of the public. have attempted the publication of this Record axd His- tory from a decided conviction that such a work will be useful to the people of the city-, county^ and State; and should be encouraged, I intend hereafter to make it a Book of Refer- ences, communicating much valuable information to men of 1930 business and Mhe rest of mankind.’ The utility^ of such a book must be manifest to all, as has been abundantly- tested in other states. Of its merits and its claims to patronage, the public must judge. Unwearied efforts and untiring labor have been exerted to make it what it is; and u'hat it is, with all its imperfections, is stamped upon its face. That it is entirely free from errors is not expected; but it is believed to be as correct as, in the nature of things, it is possible, in the first instance, to make such a book out of an unorganized mass of materials, collected from every- quarter, oral and written. Undoubtedly- many^ omissions will be observed of matters nec- 678 Extract, — Droivn's Peoria. — Continued. essary to give completeness to the work. I shall he glad to receive from those who may notice errors or omissions, the sum of their knowledge for future use, there being wdsdom, generally in a ‘multitude of counsellors.’ “I am indebted to many of the public officers of our city, as well as the ‘oldest inhabitants’ for many favors and much valuable information. I deem it a gratifyii^’ duty from me to the business portions of Peoria, to say a word with respect to the reception which they gave my former efforts to serve them in this way; but from the reasonable, charitable portion of the public, I have received every allowance for not having performed merely a stupendous difficulty but even an utter impossibility. Of the insuperable difficulty of getting up such a work, many are aware; though still a greater number are not, neither can they be without trial. “With these remarks, and with the hope that this little Man- uel will receive sufficient patronage to remunerate me for the great labor and expense which has attended its publication, and inc^uce its continuance hereafter, it is now submitted to the decision of the public, very respectfully by the publisher. S. DeWitt Deowx.” “Peoria, December, 1850.” Counsel foe Defendant. We object to reading anything from it in evidence until we have had an ojiportunity to see the book and see what ought to go in as explanatory to anything Mr. Starr wants to put in. That is the same question we had up this morning. We don’t want him to pick out an isolated sentence and put in evidence. 1931 Counsel foe Complainant. I respectfully submit we have a right under the proof made of the pertinence or ad- missibility of books to offer such parts of its as we please, and if counsel shows to the court that there are other parts explanatory that should go in, all right. The CouET. I will let it go in that way. Counsel for complainant thereupon introduced and read in evi- dence the following from pages 83 and 84 of said book: “Another of our old pioneers and citizens, who is still with us, Mr. John Hamlin, of Mass. He came here in the spring of 1821, from Springfield, in company with John Lockwood, Judge Latham (who afterwards became a citizen and proprie- tor of city lots, and died here in 1826, and whom I shall have occasion hereafter to notice), Maj. lies, Gen. J. Adams, and a Mr. Winchester, Maj. Graham, Indian agent, of St. Louis, 679 came here about that time with a keel-boat and proceeded up to LaSalle prairie (Rome) where he paid off the Indians their annuity. Some of them returned and settled here subse- 1932 quently, and became useful citizens in building up our city. In 1832, an Indian agency was opened and established here by the Government, of which Judge Latham was ap- pointed agent, in place of Maj. Graham, of St. Louis, where it had heretofore been kept. John Hamlin, Esq., was a clerk, in and kept a branch of the American Fur Company’s store in this place,Jn one of the buildings in the center of the view between Water street and the Lake — the building from the right, just below the Inn sign-post. In this store were kept Indian commodities chiefly. A portion, however, was adapted to the wants of the citizens, who, at this time were few. Mr. Hamlin while thus engaged in this store, exported the firs+ produce to Chicago in 1825, in keel-boats as far as the mouth of the Kankakee River, and from there in Durham boats to Chicago, (having built a storehouse at the former place to store in from the keel-boats, to be taken by the Durham boats up the Aux Plain River. The principal articles exported were pork, beans, and other provisions for the use of the Fur Company. There were but a very few families till within a few years of this time, with- in the present bounds of the city, till about 1832. — ” 1934 Whereupon the counsel for the complainant offered and read in evidence the deposition of William W. Stevens. (For rulings on same see Abstract of Depositions, supra, p. 401.) 1941 Whereupon counsel for complainant offered and read in evidence the direct examination of Mr. Harlow H. Spoor, following which counsel for defendant read the cross-examination. (For rulings on same see- Abstract of Depositions, supra, p. 418.) 1942 Whereupon counsel for complainant offered and read in evidence the direct examination of the witness, in the deposi- tion of Charles Hoey, following which counsel for defendant read the cross-examination of the same witness. (For rulings on same see Abstract of Depositions, supra, p. 467.) Whereupon counsel for complainant' offered .and read in evi- dence the deposition of L. F. Conant, following which counsel for defendant read the cross-examina*tion. 680 (For rulings on same see Abstract of Depositions, supra, p. 495.) Whereupon counsel for complainant otfered and read in evi- dence the direct examination in the deposition of Obediah Hicks, following which counsel for defendant read the cross-examina- tion. (For rulings on same see Abstract of Depositions, supra, p. 435.) 1944 Whereupon counsel for complainant offered and read in evidence the direct examination of Mr. "VYightman, followed by the counsel for defendant reading the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 425.) IVhereupon counsel for complainant offered and read in evi- dence the direct examination in the deposition of Charles Clay, followed by the reading of the cross-examination by the counsel for the defendant and the re-direct by the counsel for complainant. (For rulings on same see Abstract of Depositions, supra, p. 472.) Whereupon counsel for complainant otfered and read in evi- dence the deposition of Mr. Jacob Blaess, following which the counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 481.) AVhereupon counsel for complainant offered and read in evi- dence the deposition of Samuel Galons, following which counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 483.) "Whereupon counsel for complainant offered and read in evi- dence the deposition of John W. Taylor, following which counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 488.) 681 1945 Whereupon counsel for complainant offered and read in evidence the deposition of the witness Engene Dailey, follow- ing which the counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 471.) Whereupon counsel for complainant offered and read in evi- dence the direct examination in the deposition of the witness Daniel W. King, following which counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 581.) Whereupon counsel for complainant offered and read in evi- dence the direct examination of the witness, George Abbott, fol- lowing which the counsel for defendant read the cross-examina- tion. (For rulings on same see Abstract of Depositions, supra, p. 454.) 1947 Clarence Walworth Alvord, a witness for complainant, testified as follows: Direct Examination. My name is Clarence Walworth Alvord. I am a teacher and a writer. I hold the position of assistant professor in the University of Illinois, besides being special editor of the publication, the Illi- nois State Historical Library. I am professor of the University of Illinois, in the field of Western American history, particularly Illinois history. Last Christmas vacation I was elected Vice- president of the Mississippi Valley Historical Association. I had ' been for two years adjunct member of the Public Archives 1948 Commission for Illinois, of the American Historical Asso- ciation. That commission investigates the public archives of the various States, and I am a member for Illinois. I hold active membership in the American Historical Association, the Mississippi Valley Historical Association, the Illinois State His- torical Society; I have been elected corresponding member of the Chicago Historical Society, of the Missouri State Historical So- 682 Alvord, — Direct Exam. — Continued. ciety, and the Nebraska State Historical Society, and am an hon- orary member of the Missouri Historical Society of St. Louis. I have written a bulletin of the Illinois State Historical Li- brary, entitled ^‘Illinois in the Eighteenth Century;” another bul- letin of the same librar^^ board entitled ‘‘The Territory and Laws of Illinois;” for the State Historical Library I have edited the second volume of the Illinois Historical collections, for the Amer- ican Historical Association I have written a report on the French archives of Illinois; I am publisher of a pamphlet published by the Chicago Historical Society, the old Kaskaskia records for the club of four Colonial Eeprints ; I reprinted with introduction the ear- liest production of an Illinois society entitled, “Invitation Serieuse Aux Habitant des Illinois.” It was written in 1949 French and the title is given in French, meaning “Serious Invitation to be Inhabitants of Illinois,” by a citizen of Kaskaskia. That is, I suppose, just off the press now. Also the Genesis of a proclamation of 1763 which was the proclamation of the British Monarch stating the policy to be followed in M^est- ern Illinois after the French and Indian AVar. This was published by the Michigan Pioneer and Historical Society. Also a study on the Spanish Conquest of St. Joseph in 1780. This is published by the Missouri State Historical Society. I am acquainted with historical data, materials, sources, com- pilations and treatises which relate to the early exploration and settlement of the Illinois country, its government, commerce and development from the earliest European exploration down to the admission of the State into the Union. That is the special held in which I am making researches. This historical data, matenals and sources deal with the early use of the Hesplaines Eiver. Historians divide historical material into two broad 1950 classes, sources and authorities. Sources are regarded as anything that has come directly from the past down to our time. Such sources, of course, may be of different character, a tombstone, a river, Indian arrows, or they may l)e written narra- tives of events that occurred in the past, written by a contempo- rary who had original sources of information. The second class is formed by the authorities and includes the works of historians. G83 who after investigating the sources, have reached conclusions in regard to the material that is furnished by the sources. In taking up a historical problem of any character the historian goes naturally to what we call the sources of information and in those sources he will naturally find various classes of informa- tion. In a problem of this character, the question of the Des- plaines River, whether it was used by traders, etc., there is fur- nished two broad classes of sources, — first accounts of contempora- ries of the use of the Desplaines River by themselves; and, sec- ondly statements by contemporaries that the Desplaines River was usually used, or constantly used for purposes of trade. 1951 Of course we find what we call the authorities who have studied various questions and problems of western history in these sources and have reached their own conclusions, so that we would have three broad classes, narratives of the use of 1952 any river; secondly, contemporary statements that the river was so used; and thirdly, conclusions of historians. I am acquainted with sources of the kind I have called narra- tive classes, as to the Desplaines River. We have narratives from the earliest explorers, the earliest Missionaries; we have narra- tives also of traders that have used the Desplaines River — Counsel for Defendant. I object to statements of what the traders may have done. The Court. Don’t say what the traders say. A. Statements of traders in regard to passing from the— The Court. Don’t state wdiat it is, but in regard to the Des- plaines River. A. Yes, in regard to the Desplaines River. I am acquainted, for instance, with the account left by Mar- quette. Marquette and Joliet, as is well known, were the 1953 first ones to reach the Mississippi River. The question of where Marquette and Joliet went rests among historians, of course, upon the narratives which they have left and the maps which they drew, and on these maps they have outlined the course they have given. That would be taken by historians as a fact proved, that is the course of their journey. I am acquainted with the publication known as ‘‘Thwaites’ Jesuit Relations.” That 684 Aluord, — Direct Exam. — Continued. series of publications was prepared and made up as follows : The Jesuit Fathers were obliged, by the law of their order, to write letters to their Superior in Quebec. This Superior collected the information from this data, and if some of them were of partic- ular interest, he sent some of the original letters themselves, with his own account of what the Order had done, to Paris. There they were immediately published for the information of the Court of Louis XIV. Marquette’s letter was of particular in- terest and it was sent in this way to Paris and appeared in the Journal of Eolations of the following year. There were a series of volumes, one coming out every year. They were very 1954 scarce and difficult to obtain. Dr. Eeuben Gold Thwaites of the Wisconsin Historical Society undertook the reprinting of all these Jesuit Eolations. He associated with himself men and women who had a knowledge of both the history and the lan- guage and issued in a series of seventy-three volumes all of the Jesuit Eolations. It is regarded as one of the principal monu- ments to western scholarship, and these reprints are now ac- cepted as authoritative as the original Jesuit Eolations printed in Paris. Besides this he printed a translation on alternate pages, which is a very careful and accurate translation, so regarded by historians. I am acquainted with the book known as Shea’s Early Voy- ages Up and Down the Mississippi.” John Gilmary Shea was one of the best historians that has ever dealt with Western American history. He was a Eoman Catholic, particularly interested, there- fore, in the explorations of the Jesuits and men of other religious orders. It was throus’h him that it was finally decided that the honor of discovering the Mississippi was due to Marquette and Joliet. After publishing his ‘‘Discovery of the Mississippi,” 1955 he published a little volume called “Voyages Up and Down the Mississippi.” They are original narratives of voyages made by various men. He has collected them from various sources, some from the Jesuit Eelations, as Gravier’s account; St. Cosine’s account is taken from a manuscript in LaVal University in Quebec. The original was carefully transcribed and he issued it in trans- lation in his “Voyages Up and Down the Mississippi.” Shea has a very fortunate reputation in regard to his translations. Histo- 685 rians as a rule will use liis translations in j^reference to the origi- nal French, because Shea’s interpretations are more accurate. Q. Take this volume, ‘‘Jesuit Eelations and Allied Documents, Volume 59, Lower Canada, Illinois, Ottawas, 1673-1777.” That is the label on the back of the book. The full title page is somewhat fuller: “The Jesuit Eelations and Allied Documents, Travels and Explorations of the Jesuit Missionaries in Xew France, 1610 to 1691. The original French, Latin and Italian Text with English Translations and Notes, Illustrated by portraits, maps and fac- similes. Edited by Eeuben Gold Thwmites, Secretary of the State Historical Society of Wisconsin, Volume LIX, Lower Can- 1956 ada, Illinois, Ottawas, 1673-1677. Cleveland. The Burrows Brothers, Publishers, MDCC,” which the reporter will mark “Alvord Exhibit 1” for identification, is a volume of the series which you have described as the Jesuit Eelations by Dr. Eeuben Gold Thwaites! A. Yes. Counsel for Complainant. Take the volume and identify by volume and page the narratives therein contained which you re- fer to as referring to the use of the Desplaines Eiver. The Court. Give the pages containing the narratives by not merely the particular page which contains the particular para- graph which may refer to the Desplaines Eiver. Counsel for Complainant. If I get your meaning, for instance, if there was a passage on page 349, and the narrative in which that occurred began on page 340 and ran to 360, the witness is called upon to identify by the title of the narrative, and the body of pages within which the passage is contained. The Court. Precisely. 19o7 The French anE the English are printed on alternate pages. The French letter, or the French copy of the letter written by Marquette begins on page 86 and on the opposite page, 87, is the translation. The document is called “The First Voy- age made by Father Marquette towards New Mexico, and How the Idea Thereof was Conceived.” The document runs to page 163. On page 184 begins another document, “Account of the Second Voyage and the Death of Father Jaques Marquette.” That docu- ()8() Alvord, — Direct Exam. — Continued. ment ends on page 211. A map which appears in this volume op- posite page 86, is simply assembled with the document. It is not the document that was printed with the original letter of Mar- quette. It is called ‘Moliet( ’) (s) Map” and upon it is 1958 marked the rivers that were explored by himself and Mar- quette. As to the standing of that map and this reproduc- tion of that map, among historians, and the history of that map and the character of it, this map was made by Joliet hut was never reproduced until quite recently. I see it was reproduced in the Eevue des Geographique in 1880. It was found in the archives of the Marine, Paris. This is regarded among histo- rians as a reproduction of the map made by Joliet at the time of the discovery of the Mississippi Eiver. It is regarded as reliable authority for JoliePs explorations. 1959 Counsel for complainant offered from the document iden- tified as the ‘‘First Voyage by Father Marquette,” the whole of Section 10 of that narrative; counsel for defendant raised the point that other portions of the said narratives in addition to those read by counsel for complainant, which modified or con- nected with the latter should also be offered in evidence. The court ruled that the portions offered by counsel for complainant at this time might be received and that upon other portions of that nature being pointed out by counsel for defendant, the same should also be offered in evidence by counsel for complainant. Said Section 10 is abstracted as follows: “rETUEN of the father AXD of the FREX'CH. “After a month’s navigation, while descending the Miss- issippi from the 42d to the 34th degree, and beyond, and after preaching the gospel as well as I could to the Nations that I met, we started on the 17th day of July from the Village of the Akensea to retrace our steps. We, therefore, reascended the Mississippi, which gives us much trouble in breasting its current. It is true that we leave it, at about the 38th degree to enter another river which greatly shortens our road and takes us with but little effort to the lake of the Illinois. “We have seen nothing like this river that we enter, as re- gards its fertility of soil, its prairie and woods, its cattle; elk, deer, wild oats, bustards, swans, parroquets and even beaver. There are many small lakes and rivers. That on 1960 which we sailed is wide, deep and still, for sixty-five leagues. In the spring and during part of the summer, there is only 087 one portage of half a league. We found on it a Village of Illinois, Kaskasia, which consists of seventy-four cabins. They received us very well and obliged me to promise that I would return and instruct them. One of the Chiefs of this Nation, with his young men, escorted us to the lake of the Illinois, whence at last, at the end we reached the bay Des Prantz, from which we had started at the beginning of June.’ * * * Professor Alvord testifying that: The word ^OCaskasia” which does not have the third ‘‘k” is the word which is now commonly used as ^‘Kaskaskia.” The word ^‘Akensa” here is the word which we now have as ^C\r- kansas. ’ ’ 1961 Also editorial foot-note No. 41 referred to in said Section 10 of said first Voyage of Marquette, at the end of the sen- tence ‘Jn the spring and during the summer there is only one portage of half a league (41)” on page 161 of said Alvord’s Ex- hibit 1 for identification, which said footnote is as follows : ^^(41) — Reference is here made to the Illinois River, from its upper waters, the traveler obtained access to Lake Michi- gan by several portages. That between its northern fork (the Desplaines River) and the Cliicago River was, owing to the southward current along the west shore of Lake Michigan, the usual route on the outward voyage from Mackinac and other northern points. The Desplaines might also be reached by a similar portage to the Calumet River, which falls into Lake Michigan at the present South Chicago. On early maps the Chicago and Calumet Rivers are sometimes confounded with each other. On the return trip, the voyages could reach the great lake not only by these routes, but by a third— via the Kankakee (the southern fork of the Illinois) and a port- age (at the present South Bend, Ind.) to St. Joseph River, at the S. E. corner of Lake Michigan. This was often used when returning to Mackinac, as the lake current runs northward along the east shore. — (See Winsor’s Mississippi Basin, pp. '24-26.) ‘^The Chicago-Desplaines route involved a ‘carry’ of from four to nine miles, according to the season of the year; in a rainy spring season, it might not be over a mile ; and during a freshet, a canoe might be paddled over the entire route, with- out any portage. A canal between these rivers was opened in 1848, which gave a strong impetus to Chicago’s early growth; and the Government Drainage Canal, now (Decem- ber, 1899) nearing completion, follows the same route, from Chicago to Joliet, a distance of 36 miles southwest to the Des- ()88 Alvord, — Direct Exam.— Continued. plaines River — a waterway 14 feet deep, and 100 feet wide, which will not only insure proper drainage to Chicago, bui greatly facilitate her commerce.’^ 1962 Counsel for complainant also read and now offered in evi- dence from the document in said book, ‘^Alvord, Exhibit 1, for identification as the ^‘Account of the second Voyage and Death of Father Marquette,’’ the introduction and the following passage. Said introduction, on page 185, is as follows: ^‘The Mission of the Illinois was founded in the year 1674, after the first voyage which Father Jacques Marquet made the discovery new territory and new peoples who are on the great and famous Mississippi. ^^The year following, he made a second voyage, in order to establish there the Mission ; it is that one which we are about to relate.” And then, after considerable narrative, on pages 187 and 189, the following passage: ‘‘His prayer was answered against all human probability, and his health improving, he prepared himself to go to the Village of the Illinois, as soon as navigation should open — which he did with much joy, setting out for that place on the 1963 29th of March. He spent eleven days on the way, during which time he had occasion to suffer much both from his own illness, from which he had not entirely recovered, and from the very severe and unfavorable weather.” Counsel for complainant also offered the map, above identified by the witness, which appears opposite page 87 of said book. Counsel for Defendant. Is that map supposed to have been made by Joliet? A. Yes. Said map was received in evidence (page 3919 of Atlas; Trans., p. 6492; Abst., p ). Counsel for Complainant. 1 now offer the entire narrative of the first voyage. Said narrative of the first voyage, without said Section 10 above given, is abstracted as follows : * In the year 1673, Monsier The Count de Frontenac, Our Governor, and Monsieur Talon, then our intendant, rec- ognizing the importance of this discovery — either that they might seek a passage from here to the sea of China, by the river that discharges into the Vermilion or California Sea; or G89 because they desired to verify wbat has for some time been said concerning the 2 Kingdoms of Theguaio and Quiuira, which border on Canada, and in which numerous gold mines are reported to exist, — the Gentlemen, I say appointed at the same time for this Undertaking Sier Jolyet whom they con- sidered very tit for so great an enterprise; and they were well pleased that Father Marquette should be of the party. ‘‘They were not mistaken in the choice that they made of Sieur Jolyet, for he is a young man, born in this country, who possesses all the qualifications that could be desired for such an undertaking. He has experience and knows the lan- guages spoken in the country of the Outaouacs, where he has 1964 passed several years. He possesses fact and prudence, which are the chief qualities necessary for the success of a voyage as dangerous as it is difficult. Finally, he has the courage to dread nothing where everything is to be feared. Consequently he has fulfilled all the expectations entertained for him; and if, after having passed through a thousand dan- gers he has not unfortunately been wrecked in the very har- bor, his canoe having upset below Sault St. Louys, near Mon- treal, — where he lost both his men and his papers, and whence he escaped only by a sort of miracle, — nothing would have been left to be desired in the success of his voyage. 1965 “Section 1st. depaktuee of fathek jaques maequette foe THE DISCOVEEY OF THE GEEAT EIVEE CAELED BY THE SAVAGES MISSISSIPPI WHICH LEADS TO NEW MEXICO. “The feast of The Immaculate Conception of the Blessed V iEGiN — whom I have always invoked since I have been in this country of the Outaouacs, to obtain from God the grace of being able to visit the Nations, who dwell along the Missis- sippi River — was precisely the da}^ on which Monsieur Jollyet arrived, with orders from Monsieur Talon, Our Intendant, to accomplish this discovery with me. * * “We were not long in preparing all our equipment, although we were about to begin a voyage, the duration of which we could not foresee. Indian corn, with some smoked meat, con- stituted all our provisions ; with these we embarked — Mon- ster Jollyet and myself, with 5 men — in 2 bark canoes, fiill}^ resolved to do and suffer everything for so glorious an un- dertaking. “Accordingly, on the 17th day of May, 1673, we started from the Mission of St. Ignace at Michilimakinac, where I then was. The joy that we felt at being selected for this expedi- tion animated our courage, and rendered the labor of pad- dling from morning to night agreeable 'to us. And because we were going to seek unknown countries, we took every pre- caution in our power, so that, if our undertaking were hazar- dous, it should not be foolhardy. To that end, we obtained 690 Extract, — Father Marcj^uette^s Voyage. — Continued. all the information that we could from the savages who had frequented those regions ; and we even traced out from their reports a map of the whole of that new country; on it we indicated the rivers which we were to navigate, the names of the peoples and of the places through which we were to pass, the course of the great river, and the direction we were to follow when we reached it. * * * Section 2nd. the father visits in passing the tribes of the FOLLE AVOINE. WHAT THAT FOLLE AVOINE IS. HE ENTERS THE BAY DES PUANTS; SOME PARTICULARS ABOUT THAT BAY. HE AR- RIVES AMONG THE FIRE NATION. With all these precautions, we joyfully plied our paddles on a portion of Lake Huron, on that of the Illinois and on the Bay des Puants. The first nation that we came to was that of the Folle Avoine. I entered their river to go and visit these peoples to whom we have preached the Gospel for several years, — in consequence of which, there are several good Christians among them. ^ ^ I told these peoples of the Folle Avoine of my design to go and discover those remote nations in order to teach them the mysteries of our holy religion. * * * I thanked them for the good advice that they gave me, but told them that I could not follow it, because the salvation of souls was at stake, for which I would be delighted to give my life; that I scoffed at the alleged demon; that we would easily defend ourselves against those marine monsters; and, moreover, that we would be on our guard to avoid the other dangers with which they threatened us. After making them pray to God and giving them some instructions, I separated from them. Embarking then, in our canoes, we arrived shortly afterwards at the bottom of the Bay des Puantz, where our Fathers labor successfully for the conversion of these peoples, over two thousand of whom they have baptized while they have been there. This bay bears a name, which has a meaning not so of- fensive in the language of the savage: For they call it La haye salle (‘salt bay’) rather than Bay des Piians, — although with them this is almost the same and this is also the name which they give to the Sea. * * The Bay is about thirty leagues in depth and eight in width at its mouth; it narrows gradually to the bottom, where it is easy to observe a tide which has its regular ebb and flow, almost like that of the sea. This is not the place to inquire whether these are real tides; whether they are due to the wind, or to some other cause; whether there are winds, the Precur- sors of the iMoon and attached to her suite, which constantly agitate the lake and give it an apparent ebb and flow when- ever the Moon ascends above the horizon. What I can posi- 691 tively state is, that, when the water is very calm, it is easy to observe it rising and falling according to the Course of the Moon; although I do not deny that this movement may be Caused by very Kemote Winds, which pressing on the mid- dle of the lake, cause the edges to Kise and fall in the man- ner which is visible to our eyes. We left this bay to enter the river that discharges into it; it is full of bustards. Ducks, Teal and other birds, attracted thither by the wild oats of which they are very fond. But, 1967 after ascending the river a short distance, it becomes very difficult of passage on account of both the currents and the sharp rocks, which cut the canoes and the feet of Those who are obliged to drag them, especially when the Waters are low. Nevertheless, we successfully passed Those rapids; and on approaching Machkoutens, the fire-Nation, I had the Curiosity to drink the mineral waters of the Kiver, that is not far from that village. * * * Section 3rd. description of the villages of maskoutens ; WHAT PASSED THERE BETWEEN THE FATHER AND THE SAVAGES. THE FRENCH BEGIN TO ENTER A NEW AND UNKNOWN COUNTRY AND ARRIVE AT MISSISSIPPPI. Here we are at Maskutens. This word may, in Algonquin mean ‘the tire Nation,’ — which, indeed, is the name given to this tribe. Here is the limit of the discoveries which the French have made. For they have not yet gone any further. * ^ * 1968 No sooner had we arrived than we. Monsieur Jollyet and I, assembled the elders together; and he told them that he was sent by Monsieur, Our Governor, to discover new countries, while I was sent by God to illumine them with the light of the holy Gospel. He told them that moreover, the sovereign Mas- ter of our lives wished to be known by all the Nations; and that in obeying his will I feared not the death to which I ex- posed myself in voyages so perilous. He informed them that we needed two guides to show us the way; and We gave them a present, by it asking them to grant us the guides. To this they very Civilly consented; and they al?o spoke to us by means of a present, consisting of a Mat to serve us as a bed during the whole of our voyage. On the following day, two Miamis who were given us as guides embarked with us, in the sight of a great crowd, who could not sufficiently express their astonishment at the sight of seven Frenchmen, alone and in two canoes, daring to under- take so extraordinary and so hazardous an Expedition. We knew that, at three leagues from Maskoutens, was a River which discharged into Missisipi. We knew also that the direction we were to follow in order to reach it was west-southwesterly. But the road is broken by so many swamps 692 Extract, — Father Marquette’ s Voyage. — Continued. and small lakes that it is easy to lose one’s way, especially as the river leading thither is so fnll of wild oats that it is difficult to find the channel. For this reason we greatly needed our two guides who safely conducted us to a portage of 2,700 paces and helped us to transport our Canoes to enter That river; after which they returned home, leaving us alone in this Unknown country, in the hands of providence. Thus, we left the Waters flowing to Quebeq, 4 or 500 leagues from here, to float on Those that would thencefor- ward Take us through strange lands. * * * The Eiver on which we embarked is called Meskousing. It is very wide; it has a sandy bottom, which forms various shoals that render its navigation very difficult. It is full of islands covered with Vines. On the banks one sees fertile! 1969 lands, diversified with woods, prairies, and Hids. There are oak. Walnut and basswood trees; and another kind whose branches are armed with long thorns. We saw there neither feathered game nor fish, but many deer, and a large number of cattle. Our Eoute lay to the southwest, and, after navigat- ing about 30 leagues, we saw a spot presenting all the appear- ances of an iron mine; and, in fact, one of our party, who had formerly seen such mines, assures us that The One which We found is very good and very rich. It is Covered with three feet of good soil, and is quite near a chain of rocks, the base of which is covered by very fine trees. After proceed- ing 40 leagues on This same route, we arrived at the mouth of our Eiver, and, at 42 and a half degrees Of Latitude, we safely entered Missisipi on the 17th of June with a Joy that I cannot express. Section 4th. of the cheat kivek called missisipi. its most NOTABLE FEATUKES. OF VAKIOUS ANIMALS AND ESPECIAHLY THE PISIKIOHS OK WILD CATTLE, THEIR SHAPE AND NATURE. OF THE FIRST VILLAGES OF THE ILINOIS, WHERE THE FRENCH ARRIVED. Here we are, then, on this so renowned Eiver, all of whose peculiar features I have endeavored to note carefully. The Missisipi Eiver takes its rise in various lakes in the country of the Northern nations. It is narrow at the place where Miskous empties; its current which flows southward, is slow and gentle. To the right is a large Chain of very high Moun- tains and to the left are beautiful lands; in various places the streams are divided by islands. On sounding, we found ten brasses of Water. Its width is very unequal; sometimes it is three-quarters of a league, and sometimes it narrows to three 'arpents. We gently followed its Course which runs toward tlie south and southeast, as far as the 42nd degree of Latitude. Here we plainly saw that its aspect was completely 693 changed. There are hardly any woods or mountains; The islands are more beautiful and are Covered with finer trees. * * * 1970 When we reached the parallel of 41 degrees, 28 minutes following the same direction, we found that Turkeys had taken the place of game ; and the pisikious or wild cattle. That of the other animals. * « * We continued to advance, but, as we knew not whither we . were going, — for we had proceeded over One Hundred leagues without discovering anything except animals and birds, — we kept well on our guard. On this account, we make only a small fire on land, toward evening to cook our meals; and, after supper, we remove Ourselves as far from it as possible, and pass the night in our Canoes, which we anchor in th0 river at some distance from the shore. This does not prevent us from always posting one of the party as a sentinel for fear of a surprise. Proceeding still in a southerly and south- westerly direction, we find ourselves at the parallel of 41 de- grees, and as low as 40 degrees and some minutes, — partly southeast and partly southwest, — after having advanced over 60 leagues since We entered the Eiver, without discovering anything. Finally on the 25th of June, we perceived on the water’s edge some tracks of men and a narrow and somewhat beaten path leading to a fine prairie. We stopped to Examine it; and thinking that it was a road which led to some village of sav- 1971 ages. We resolved to go and Eeconnoiter it. We therefore left our two Canoes under the guard of our people, strictly charging Them not to allow Themselves to be surprised, after which Monsieur Jollyet and I undertook this investigation. * * * Section 5th. how the ilinois received the father in their VILLAGE. * * * After we had taken our places, the usual Civility of the country was paid to us, which consisted in offering us the Calumet. This must not be refused, unless one wished to be considered an Enemy, or at least uncivil; it suffices that one makes a pretense at smoking. While all the elders smoked after Us, in order to do us honor, we received an invitation on behalf of the great Captain of all the Illinois, to proceed to his Village where he wished to hold a Council with us. We went thither in a large Company, For all these people who had never seen any Frenchmen among Them could not cease looking at us. They lay on the grass along the road; they preceded us, and then retraced their steps to come and see us Again. All this was done noiselessly, and with marks of great respect for us. When we reached the Village of the Great Captain, We saw 694 Extract, Father Marquette^ s Voyage. — Continued. him at the entrance of his Cabin, between two old men, all three erect and naked, and holding their Calumet toward the sun. He harrangued us in a few words, congratulating us upon our arrival. He afterward otfered us his Calumet, and made us smoke while we entered his Cabin, where we received all their usual kind Attentions. * * * Having said this he placed the little Slave near us, and gave us a second present, consisting of an altogether myste- rious Calumet upon which they place more value than upon 1973 a Slave. By this gift he expressed to us the esteem that he had for Monsieur, Our Governor, from the account which we had given of him ; and by a third, he begged us on behalf of all his Nation not to go farther, on account of the great danger to which we Exposed ourselves. I replied that I Feared not death, and that I regarded no happiness as greater than that of losing my life for the glory of Him who has made all. This is what these poor people cannot Understand. The Council was followed by a great feast. * * * We slept in the Captain’s Cabin and on the following day we took leave of him, promising to pass again by his village within four moons. He Conducted us to our Canoes with nearly 600 persons who witnessed our Embarkation, giving us every possible manifestation of the joy that Our visit had caused them. For my own part, I promised, on bidding them Adieu, that I would come the following year and reside with Them to instruct them. But, before quitting the Ilinois coun- try it is proper that I should relate what I observed of their Customs and usages. Section 6th. ox the chakacter of the ilixois ; of their hab- its AXD CUSTOMS, OMITTED. * * * 1977 Sectiox 7th. departure of the father from the ilixois ; of THE PAIXTED MOXSTERS WHICH HE SAW UPOX THE GREAT RIVER MISSISIPI; OF THE RIVER PEKITAXOUI. COXTIXUATIOX OF THE VOYAGE. We take leave of our Ilinois at the end of June about three o’clock in the afternoon. We embark in the sight of all the people, who admired our little Canoes, for they have never seen any like them. We descended following the current of the river called Pekitanoui which discharges into the Mississippy, flowing from the Northwest. I shall have something important to say about it when I shall have related all that I observed along this river. While passing near the rather high rocks that line the river, I noticed a simple which seemed to me very Extra or dinar>^ The root is like small turnips, fastened together by little filaments, which taste like carrots. From this root springs a leaf as wide As one’s hand and half a finger thick, with spots. From the middle of this leaf springs other leaves, resembling the sconces used for candles in our halls; and each leaf bears Five or six yellow flowers shaped like little Bells. * * * While Skirting some rocks which by Their height and Length inspired awe, We saw upon one of them two painted Monsters which at first made Us afraid, and upon which the boldest savages dare not Long rest their eyes. They are as large As a calf; they have Horns on their healds like those of deer, a horrible look, red eyes, a beard like a tiger’s, a face somewhat like a man’s, a body covered with scales, and so Long A tail that it winds all around the Body, passing over the head and going back between the legs, ending in a Fish’s tail. Green, red and black are the three Colors composing the Picture. Moreover, these two monsters are so well painted that we cannot believe that any savage is their author; for 1978 good painters in France would find it difficult to paint so well, — and besides they are so high up on the rock that it is difficult to reach that place conveniently to paint them. Here is approximately The shape of these monsters, as we have faithfully copied it. While conversing about these monsters, sailing quietly in clear and calm Water, we heard the noise of a rapid into which we were about to run. I have seen nothing more dreadful. An accumulation of large and entire trees, branches and floating islands, was issuing from The mouth of The river Pekistanoui with such impetuosity that we could not without great danger risk passing through it. So great was the agitation that the water was very muddy and could not become clear. Pekitanoui is a river of Considerable size, coming from the Northwest, from a great Distance; and it discharges into the Missisipi. There are many Villages of savages along this river and I hope by its means to discover the vermillion of California sea. Judging from the Direction of the course of the Missisipi, if it Continue the same way, we think that it discharges into the mexican gulf. It would be a great advantage to find the river Leading to the southern sea, toward California; and. As I have said, this is what I hope to do by means of the Pekitanoui, according to the reports made to me by the sav- ages. From them I have learned that, by ascending this river for 5 or 6 days, one reaches a fine prairie, 20 or 30 Leagues Long. This must be crossed in a Northwesterly direction, and it terminates at another small river, — on which one may embark, for it is not very difficult to transport canoes through so fine a country as that prairie. This 2nd Kiver flows toward the southwest for 10 of 15 leagues, after which it enters a Lake, small and deep (the source of another deep river— substi- ()96 Extract, — Father Marquette’s Voyage. — Continued. luted by Dablon), wliicli flows toward the West, where it falls into the sea. I have hardly any doubt that it is The Vermilion sea, and I do not despair of discovering it some day, if God grant me the grace and The health to do so, in order that I may preach the Gospel to all The peoples of this new world who have so Long groveled in the darkness of infidelity. Let us resume our Route after Escaping As best We could from the dangerous rapid Caused by the obstruction which I have mentioned. Section 8th. of the new counteies discovered by the FATHER. VARIOUS PARTICULARS. MEETING WITH SOME SAV- AGES. FIRST NEWS OF THE SEA AND OF THE EUROPEANS. GREAT DANGER AVOIDED BY MEANS OF THE CALUMET. After proceeding about 20 Leagues straight to the south, and a little less to the southeast, we found ourselves at a river called ouaboukigou. The mouth of which is at the 26th degree of latitude. Before reaching it, we passed by a Place that is dreaded by the Savages, because they believe that a manitou is there, — that is to say, a demon, — that devours travelers; and The savages who wished to divert us from our undertak- ing warned us against it. This is the demon, there is a small 1979 cover, surrounded by rocks 20 feet high into which the whole Current of the river rushes; and being pushed back against the waters following It, and checked by an Island nearby, the Current is compelled to pass through a narrow Channel. This is not done without a violent Struggle between all these wa- ters, which force one another back, or without a great din, w^hich inspires terror in the Savages, who fear everything. But this did not prevent us from passing and arriving at Waboukigou. This river flows from the lands of the East, where dwell the people called Chaouanons in so great numbers that in one district there are as many as 23 villages and 15 in another, quite near one another. They are not at all warlike and are the nations whom the Iroquois go so far as seek and war against without any reason ; and, because these poor peo- ple defend themselves, they allow themselves to be captured and taken like flocks of sheep ; and, innocent, though they are, they nevertheless sometimes experience The barbarity of the Iroquois who cruelly burn Them. A short distance above the river of which I have just spoken are cliffs, on which our frenclnnen noticed an iron mine, which they consider very rich. There are several veins of ore and a bed a foot thick and one sees large masses of it united with Pebbles. A sticky earth is found there, of three different colors, — puiqfle, violet and Red. The water in which the latter is washed assumes a bloody tinge. There is also very heavy red sand. I placed some on a paddle which was dyed with its color — so deej)ly tliat the Water could not wash it away during the 15 days while I used it foi paddling. * * * With the same object, we were compelled to erect a sort of cabin on the water, with our sails as a protection against the mosquitos and the rays of the sun. While drifting down with The current in this condition, we perceived on land some savages armed with guns, who awaited us. I at once otfered them my plumed calumet while our frenchmen prepared for defense, but delayed tiring that The savages might be the first to discharge their guns. I spoke to them in huron but they answered me by a word which seemed to be a declaration ol' 1980 war against us. However, they were as frighteend as we were ; and what we took for a signal for battle was an invita- tion that they gave us to draw near that they might give us food. We therefore landed, and entered their cabins, where they offered us meat from wild cattle and bear’s grease, with white plums, which are very good. They have guns, hatchets, hoes. Knives, beads and flasks of double glass, in which the- put their powder. They wear their hair long, and tattoo their bodies after the hiroquois fashion. The women wear head-dresses and garments like those of the huron women. They assured us that we were no more than ten days’ jour- ney from the sea ; that they bought cloth and all other good>^ from the Europeans who lived to The east, that these Euro- peans had rosaries and pictures; that they played upon in- struments; that some of them looked Like me, and had been received by these savages kindly. Nevertheless I saw none who seemed to have received any instruction in the faith; J gave them as much as I could, with some medals. This news animated our courage, and made us paddle with Fresh ardor. We thus push forward, and no longer see so many prairies, because both Shores of The river are bor- dered with lofty trees. * * * We had gone down to near the 33d degree of latitude having proceeded all the time in a southerly direction, when we perceived a village on the water’s edge called Mitchigamea. * * * They prepared to attack us, on both land and water ; part of them embarked in great wooden canoes, — some to ascend, oth- ers to descend the river, in order to Intercept us and sur- round us on all sides. Those who were on land, came and went, as if to commence the attack. In fact, some Young men threw themselves into the water to come and sieze my Canoe ; but the current compelled them to return to land. ^ One of them hurled his club which passed over without^ striking us. In vain, I showed The calumet and made them signs that we were not coming to war against them. The alarm con- tinued, and they were already preparing to pierce us with f)98 Extract, — leather Ma rrjuette\s Voyage. — Continued. arrows from all sides, when God suddenly touched the hearts of the old men who were standing at the water's edge. This, no doubt, happened at the sight of our calumet, which they had not clearly distinguished from afar; but as I did not cease displaying it, they were influenced by it, and checked the ardor of their Young men. Two of these elders even, — after casting into our canoe, as if at our feet. Their hows and quivers;^ to reassure us, — entered the canoe, and made us approach the shore whereon we landed, not without fear on our part. At first, we had to speak by signs, because none of them under- stood the six languages which I spoke. At last, we found an old man who could speak a little Ilinois. 1981 We informed them by our presents, that we were goii to sea. They understood very well what we wished to say to them, but I know not whether they apprehended what I told them about God, and about matters pertainiug to their sal- vation. This is a seed cast into the ground, which will bear fruit in its time. We obtained no other answer than that we would learn all that we desired at another large village, called Akamsea, which was only 8 or 10 leagues lower down. They offered us sagamite and fish, and we passed the night amoiui them, with some anxiety. Section 9th. eeception given to the fbench in the last VILLAGE WHICH THEY SAW. THE MANNEKS AND CUSTOMS OP THOSE SAVAGES. SEASONS FOE NOT GOING FAETHEE. We embarked early on the following day, with our inter- preter; a canoe containing ten savages went a short distance ahead of us. When we arrived within half a league of the Akamsea, we saw two canoes coming to meet us. He who com- manded stood upright, holding in His hand The/ calumet with which he made various signs according to the custom of the country. He joined us, singing very agreeably and gave us to- bacco to smoke; after that, he offered us sagamite, and bread made of Indian corn, of which we ate a little. He then preceded us, after making us a sign to follow Him slowly. A place had been prepared for us under The scaffolding of the chief of the warriors; it was clean and carpeted with fine rush mats. Upon these we were made to sit, having around us the elders, who were nearest to us; after them the warriors; and finally all The common people in a crowd. We fortunately found there a Young man who understood Ilinois much better than did the Interpreter whom we brought from Mitchigamea. Through him I spoke at first to the whole assembly by The usual Y>resents. They admired what I said to Them about God and the mysteries of our holy faith. They manifested a great desire to retain me among them, that I might instruct Them. We afterwards asked them what they knew about the sea. They replied that we were only ten days’ journey from it — G99 we could have covered the distance in 5 days; that they were not acquainted with The nations who dwelt There, because Their enemies prevented them from Trading with those Euro- peans; that the hatchets, knives and beads that we saw wer^ sold to Them partly by Nations from The east, and partly by an Ilinois village westward. They also told us that the sav- ages with guns whom we had met were their enemies, who Barred Their way to the sea, and prevented them from becom- ing acquainted with the Europeans, and from carrying on any trade with Them; that moreover we exposed ourselves to great dangers by going farther, on account of the continual forays of their enemies along the river, — ^because as they had guniS and were very warlike, we could not without manifest danger proceed down the river, which they constantly- occupy. * * * Monsieur Jollyet and I held another Council, to deliberate upon what we should do, — whether we should push on or re- main content with the discovery which v/e had made. After attentively considering that we were not far from the gulf of Mexico, the basin of which at the latitude of 31 degrees, 60 minutes, while we were at 33 degrees, 40 minutes, we judged that we could not be more than 2 or 3 days’ journey from it; and that, beyond a doubt, the Missisipi Eiver discharges into the Florida or Mexican gulf and not to The east in Vir- ginia, whose sea-coast is at 34 degrees latitude, — which we had passed, without, however, having as yet reached the sea, or to the West in California, because Jn that case our route would have been to the west or west-southwest, whereas, we had always continued It toward the south. We further consid- ered that we exposed ourselves to the risk of losing the re- sults of this voyage of which we could give no information, if we proceeded to fling ourselves into the hands of the Span- iards, who, without doubt, would at least have detained us as captives. Moreover we saw very plainly that we were not in a condition to resist Savages allied to The Europeans, who were numerous and expert in firing guns, and who continually infested the lower part of the river. Finally, we had ob- tained all the information that could be desired in regard to this discovery. All these reasons induced us to decide upon . Eeturning; this we announced to the Savages, and after a day’s rest, made our preparations for itC’ Witness Alvord, Contimiing. 1983 Eef erring to the passage read first, ^Mt is true that we leave it at about the 28th degree to enter another river which greatly shortens our road and takes us with but little effort to the Lake of the Illinois,” That is Lake Michigan, commonly called for several years the Lake of the Illinois. The Jesuits preferred that. 700 Alvord, — Direct Exam. — Continued. The book now shown me which has been marked for identifica- tion ‘^Alvord Exhibit 2,”. and which has the title page, ‘‘Early Voyages np and down the Mississippi by Cavalier St. Cosme, and Others, with an introductory notice and index by John Gilmary Shea,’’ printer’s plate: “Albany, Joel Munsell, 1861.”, — is one of the series of John Gilmary Shea, to which I have referred. 1 am acquainted with the standing and reputation of that book among historians. It is regarded as an authoritative collection of sources in regard to the early history of the middle west. As to the standing and acceptation of those sources among historians, — they are regarded as very authoritative statements. 1981 Counsel for Complainant. Now, we otfer and read from the document which begins on page 43 of said book, “Alvord Exhibit 1, for identification,” with a special title page there, headed with the Eoman “II,” “Voyage down the Mississippi in 1699, by the Eeverend Messrs. Montingny, St. Kosme, Davies and Thumur de la Source,” that portion thereof beginning on page 54 of said book as follows: “On the 24th of October, the wind having fallen, we made our canoes come with all our baggage, and perceiving that the waters were extremely low, we made a cache on the shore, and took only what was absolutely necessary for our voyage, reserving until spring to send for the rest, and we left in charge of it Brother Alexander, who consented to remain there with Father Pinet’s man, and we started from Chi- caqw. ’ ’ Counsel for Complainant. Is that Chicago! The Witness. That is Chicago. Said paragraph continues as follows: “On the 29th, and put up for the night about two leagues otf in the little river which is then lost in the prairies. The next day we began the portage which is about three leagues long, when the water is low, and only a quarter of a league in the spring, for you embark on a little lake that empties into a branch of the river of the Illinois, and when the waters are low, you have to make a portage to that branch.” And a foot-note that states: “Mud Lake, which empties into the Desplaines, and called by voyageurs Le Petit Lac.” “We made half our portage that day, and we should have made some progress farther when we perceived that a little 701 boy whom we had received from Mr. DeMuys having started alone, although he had been told to wait, he got lost.^^ 1985 Also the following passage: sat out the 2nd of November in the afternoon, made the portage and slept at the river of the Illinois; we went down the river to an island. During the night we were surprised to see an inch of snow, and the next day the river frozen in several places, yet we had to break the ice and drag the canoe, because there was no water; this forced us to leave our canoe and go in search of Mr. DeMontigny, whom we overtook the next day, the 5th of the month at Stag Island (Isle Aux Cerfs). They had already made two leagues portage, and there were four to make to Monjolly, which we made in three days ' and arrived on the 8th of the month. From the Illinois Isle A La Cache to Monjolly is in space seventeen leagues. You must always make a portage, there being no water in the river except in the spring. All along this river is very agreeable.” Foot-note: ‘‘This is the well known mound at Joliet, called Mount Joliet, once supposed to be a work of art, but now generally conceded to be a natural formation.” “The materials for paving used in Chicago are obtained from that source.” That is an extract from AVilliam Barry, Esq. “Mount Joliet may be a mistake for Mon jolly and Mon- jolly not a corruption. There is Mount Jolly in France which took its name from the following circumstance,” etc. Said portions so offered were admitted in evidence. Counsel fob Complainant. In connection with this, we desire to offer from the first Andreas History of Chicago, previously 1986 identified, on page 66, the print of a section of Charlevoix map which labels the Desplaines Eiver and shows the Chicago Kiver, and between the two gives a description of the Portage du Chien. There will be some other passages in Andreas that we will offer later. Counsel eok Defenuant. I don’t understand Andreas’ map has been identified or proved to be authoritative so far, therefore we object to its being offered. The CouKT. What proof have you in the record of that! Counsel eoe Complainant. The proof by Mr. Hi Id in regard to Andreas’ map of Chicago, his very great personal knowledge of it and his very great acceptance. For that matter it has been accepted by the courts. 702 Alvord, — Direct Exam. — Continued. Counsel foe Defendant. I did not understand Mr. Hild so tes- tified. 1987 Counsel foe Complainant. I am making reference to it at this time for the purpose of convenience merely. Counsel foe Defendant. My recollection is he said he had no knowledge as to its value as evidence, its value as testimony. Counsel foe Complainant. That will straighten itself all out. The CouET. I am frank to say, as I told you after Mr. Hild con- cluded I have not borne in mind and cannot bear in mind the various things and the testimony that he gave in relation to it, and whether or not as to any particular thing his testimony is such that it would be admitted in evidence on hia testimony, and I cannot remember, but I will have to be informed. On a great many things his testimony was not such that it would be admitted as a historical work. Counsel foe Complainant. We will try to have selected all the things that he failed to qualify upon. Counsel foe Defendant. Do I understand this otfer is excluded now, this map? The CouET. I don’t remember what he said as to this. Counsel foe Complainant. We ^re prepared to supplement it. Counsel foe Defendant. He has offered a certain map in evi- dence and I make objection to it. The CouET. If you have the testimony as to that written up I would like to look it over. Counsel foe Complainant. We are prepared to supplement Mr .Hild’s evidence on Andreas History very abundantly. 1988 The Couet. Well, as I say, it may be as to that particular thing his evidence was sufficient, but as to most of them it was Insufficient. Said map was excluded. (Atlas page 3920, Trans, p. 6494, Abst. p. 1916.) Professor Alvord further testified : The book now shown me, which has been marked ‘AHvord Ex- hibit 3 for identification,” and which has for its title page the fob 703 lowing, ^‘Information respecting the history, condition and pros- pects of the Indian Tribes of the United States, collected and pre- pared under the direction of the Bureau of Indian Affairs, per Act of Congress of March 3, 1847, by Henry K. Schoolcraft, LLD., illustrated by S. Eastman, Captain U. S. A., published by authority of Congress; Part III. Philadelphia, Lippincott, Crambo & Co.,” I am acquainted with, — in particular to that portion of the volume which appears between pages 353 and 369 and entitled “Indian Life in the Northwest in 1783, by Jean Baptiste Perrault.” This is the account by Jean Baptiste Perrault who lived for a very large number of years among the Indians of the northwest engaged in the fur trade. He was in Illinois once on a trading trip to 1989 Kaskaskia for a Montreal merchant. In the first part of this document he gives an account of his trading trip to Illinois, and his stopping at G ahold a over winter and also his return from Gahokia, with the products of his trade. As to the standing and acceptance among historians of this compilation, “Indian Antiquities” by Schoolcraft, — Schoolcraft is one of the authorities on Indian Antiquities and has made elab- orate collections of material of this sort. This narrative by Perrault is a narrative of a man who was making a journey from one place to another, and he states simply how he went from A. to B. Historians would regard such narra- tives as very good testimony because there is no purpose in the mind of the writer to deceive. He simply is stating a fact, that “I went from A to B, B to 0, and I went in that way.” Counsel for Complainant. I offer in evidence the passage on page 355 of this narrative reading as follows : Counsel for Defendant. That is objected to. The Court. On what ground! 1990 Counsel for Defendant. I have not seen it, I don’t know what it is, and a mere recital of specific facts I do not under- stand would be competent. Said passage was thereupon received in evidence as follows: “About the 15th of April, the packs from Missouri ar- rived. Our Bourgeois settled his accounts with M. Coteau, and received seventy-four packs of furs. His retail store at 704 A Ivofd, — Direct Exam. — Continued. Cahokia ]H*oduced 500 Spanish dollars, and 400 pounds of tobacco. We left Cahokia on the 4th of May for Mackinac. My directions were to pass by Chicago, having one barge and one canoe, and to await the arrival of M. Marchisseaux at Little Detroit, in Lake Michigan, he having gone by the way of Prairie des Chiens, to terminate his business with the Sauks. After fourteen days detention, he arrived, and con- tinuing our route, we reached Mackinac, the beginning of July, where I found myself at liberty.” Counsel foe Complainant. Look at the document which I now show you, which has been marked ‘‘Alvord Exhibit 4 for identi- fication,” headed at the top ‘^Chicago Historical Society. Journal of a Voyage made by Mr. Heward to the Illinois Countr}^,” 1991 and state if you are acc|uainted with that document. A. I am. This is an account written day by day; it is a diary kept by Mr. Hugh Heward who was a merchant in Detroit con- nected with such merchants as John Haskins of Detroit, and other Canadian merchants, because Detroit at that time was in British Canada. I am now stating what is generally accepted by his- torical scholars. Heward went to Cahokia on business for his colleagues. 1993 It is generally known among historians that Heward was obliged to go to Cahokia on business for his colleagues and this diary was kept when he went down the Cahokia on business. The original manuscript of Howard’s diary is in the library of Mr. C. M. Burton of Detroit. This is a transcription made in Air. Burton’s Ifbrary for the Chicago Historical Society. I have seen the original. I have examined the original and read it. This is a fair copy, yes sir. Counsel for Complainant. We offer in evidence from the fol- lowing pages: On page 22 — Counsel for Defendant. If the court please, we object to the offer on the ground that it has not been shown that this is a true copy of the manuscript. (Objection was sustained, and the book not read.) 1997 As to the book which is now shown me, which is marked ”Alvord Exhibit 5” for identification, entitled “Narrative of an Expedition to the source of St. Peters Biver, Lake Minni- ])eek. Lake of the AVoods, etc., jierfornied in 1823 by order of J. C. Calhoun, Secretary of War, under the command of 1998 Stephen H. Long, U. S. T. E. Compiled from the notes of Major Long, Messrs. Say, Keating and Calhoun, by William H. Keating, A. M., etc.. Professor of Mineralogy, and Commerce, as applied to the Arts in the University of Pennsylvania, Geolo- gist, and Historiographer to the Expedition,” in two volumes; Volume one, London, printed by George B. Whittaker, Ave Maria Lane, 1825; and its standing and acceptation and reputation among historians. I know something of it. It is an account or narrative of this expedition, as historians know, and would be accepted as an authority for w^hat occurred on the expedition. Whereupon complainant offered in evidence passages from the above book on pages 167 and 168. On objection from the defendant on the ground that the above is hearsay evidence, the court reserved its ruling, and admitted the passages, which were as follows : 2001 ^‘The South Fork of Chicago Kiver takes the rise about six miles from the Fort in a swamp which communicates also with the Desplaines, one of the head branches of the Illinois. A number inform us that this route was frequently traveled by traders, and that it had been used by one of the officers of the garrison, who returned with provisions from St. Louis a few days before our arrival at the Fort; we determined to ascend the Chicago Kiver in order to observe this inter- esting division of waters. Accordingly we left the Fort on the 7th of June in a boat which, after having ascended the river about four miles, we exchanged for a narrow pirogue that drew less water; the stream we were ascending was very narrow, rapid and crooked, presenting a great fall ; it continued for about three miles when we reached a sort of swamp designated by the Canadian voyagers under the name of LePetit Lac. Our course through this swamp, which extended for three miles, was very much impeded by the high grass, weeds, etc., through ‘which our pirogue passed with difficulty. Observing that our progress through the fen was very slow, and the day being considerably advanced, we landed on the north bank; we con- tinued our course along the edge of the swamp for about three miles until we reached the place where the old portage road meets the current, which was here very distinct toward the south. 2002 We were delighted at beholding for the first time a feature so interesting in itself but which we had afterwards an op- portunity of observing!* frequently on the route, viz. : the di- Alvovd, — Di reef Exa m. — Contvn iied. 70() vision of waters starting from the same source and running in two ditferent directions, as though as to become the feed- ers of streams that discharged themselves into the Ohio at immense distances apart. Although at the time we visited it there was scarcely enough water to permit our pyrogue to pass — , Without question of doubt, that in the spring of the year the route must be an eligible one. Lieutenant Hopson, who accompanied us to the Desplaines, told us that he had traveled it with ease in a boat loaded with lead and flour. The dis- tance from the fort to the intersection of the portage road, and Desplaines, is supposed to be about twelve or thirteen miles; the elevation of the feeding lake above Chicago River was estimated at five or six feet; and it is probable that the descent of the Desplaines is less considerable. The portage road is about eleven miles long; and the usual distance trav- eled by land seldom, however, exceeds from four to nine miles ; in very dry seasons it has been said to amount to thirty miles, as the portage then extends to Mount Juliet, near the con- fluence of the Kankakee.” 2009 Also the tenth sentence on page 175. ‘‘Having spent a few days in Chicago, the party left that post on Wednesday, June 11. The first stream passed on that day was the Chicago River, which we crossed about half a mile above the Fort, and immediately above the first Fork (or Gary River) ; the party next came to the Desplaines River, which is one of the head branches of the Illinois ; it receives its name from a variety of maple, which by the Canadians is named ‘plaine.’ ” 2010 Thereupon complainant read from the American State Papers, First Session, Sixteenth Congress (a United States Government publication), documents 12 to 33, Serial number 32. The title page is, “Letter from the Secretary of War transmitting Topographical reports made with a view to ascertain the prac- ticability of uniting the waters of Illinois River with those of Lake Michigan. December 28, 1819. Read and ordered to lie upon the table. Washington, Printed by Gales & Seaton, 1819, and is as follows : “ Department of War: 28th December, 1819. Sir : In compliance with a resolution of the House of Rep- resentatives, of the 15tli inst. directing the Secretary of War ‘to lay before the House the several Topographical re- ports that have been made to the War Department, in pur- suance of instructions to that effect, respecting the practica- bility of uniting, by a canal, the water of the Illinois River, 707 and those of Lake Michigan, and such other information as he may be in possession of, on that subject,’ I have the honor to transmit an extract of Major Long’s rejmrt, and a copy 2011 of a report made by li. Graham and Joseph Philips, Esquires, which comprehend all the information on the subject in this Department. I have the honor to be. Very respectfully. Sir, Your most obedient servant, J. C. Calhoun^. Hon. Henry Clay, Speaker of the House of Representatives, U. S. “Extract from a Eeport of Major Stephen H. Long to George Graham, Esq., Acting Secretary of War, dated Washing- ton, March 4th, 1817. The Illinois is formed by the union of three considerable Kivers, the Des Planes, the De Page and the Kankakee; the last of which is nearly double the size of either of the two former. The Illinois is about 300 miles in length, and is of variable width, from seventy yards to one mile. It has a very moderate current, and a depth of water sufficient to render it navigable, at all times for boats of considerable burden, about 230 miles from its mouth. At the mouth of the Ver- million, there are rapids, perceivable only in the lower stages of winter. Farther up, the water is not, generally, so deep as it is below the Vermillion. The Valley of the Illinois varies in its width, from three to ten miles; is generally flat and marshy, and, for the most part, subject to inundation, when the river has no more than 2012 a medial height. In some parts of it, however, prairies and bottoms, of considerable extent are to be met with, elevated much above high water mark. In ascending the river, the bluffs, gradually decrease in height, being about 150 feet high at the mouth, and about 100 feet at the head of the river. Imbedded in the bluffs, are strata of limestone, slate and coal, which, occasionally, make their appearance along the surface of the declivities. The river Des Plaines is a small stream rising in the low- lands, bordering upon the west side of Lake Michigan, and has its general course in a southwesterly direction. The val- ley of this river has an average width of about one mile, and is terminated on both sides by regular banks, nearly parallel to each other, extending along the river about 30 miles from the head of the Illinois. In ascending this river, also, the banks or bluffs gradually decrease in height, being as be- fore mentioned, about 100 feet high at the mouth, and only 20 or 25 at the distance of 30 miles higher up the river, where, instead of maintaining their parallel direction, they form 708 Extract, — Long’s Report. — Continued. nearly right angles with the course of the river, that on the right taking an easterly, and that on the left a northwesterly course ; but, being gradually inflected from these courses, they form an extensive curve, encircling a large tract of flat prairie, in no part elevated more than 12 or 14 feet above the common level of the water in this vicinity. The river, throughout the above mentioned distance, has 4 or 5 short 2013 rapids or ripples that make their appearance only in times of low water. In every other part, it has the appearance of being a chain of stagnant pools and small lakes, affording a sufficient depth of water for boats of moderate draught. In the flat prairie, above mentioned, is a small lake, -about 5 miles in length, and from 6 to 30 or 40 yards in width, com- municating both with the river Desplaines and Chicago River, by means of a kind of canal, which has been made partly by the current of the water, and partly by the French and Indi- ans, for the purpose of getting their boats across in that di- rection, in time of high water. The distance from the river Desplaines to Chicago River, by this water course, is about 9 miles ; through the greater part of which, there is more or less water, so that the portage is seldom more than 3 miles in the driest season; but in a wet season, boats pass and re- pass with facility between the two rivers. The rivers DePage and Kankakee bear nearly the same character, in regard to their bluffs, valleys, etc., that has been given to the Desplaines. The former of these rivers takes its rise a few miles west of that of the Desplaines, and has a . course nearly parallel with it. The latter rises in a flat marshy countiw in the neighborhood of the St. Joseph of the Lake, and runs a meandering course westwardly, passing the southern extremity of Lake Michigan at the distance of 20 or 30 miles from it. Near the head of this river is a small creek falling 2014 into St. Joseph, through which boats have passed in time of high water, from the St. Joseph to the Kankakee. The country through which the Desplaines, the DePage and the Kanka- kee Rivers take their course, appears to be underlaid with a vast bed of limestone, which occasionally makes its appear- ance in the valleys of those rivers covered with a soil too thick to support vegetation. ^ ^ 2016a Proposed Canals and Roads. A canal uniting the waters of the Illinois, with those of Lake Michigan, may be considered the first in importance of any in this quarter of the country, and, at the same time, the construction of it would be attended with very little expense, compared with the magnitude of the object. The water course, which is already opened between the River Desplaines and Chicago River, needs but little more excavation to render it sufficiently capacious for all the purposes of a canal. It may 709 be supplied with water at all times of the year, by construct- ing a dam of moderate height across the Desplaines, which would give the water of that river a sufficient elevation to sup- ply a canal extending from one river to the other. It would be necessary also, to construct locks at the extremities of the canal, that communicating with Chicago River being calculated 2017 to elevate about six feet, and that communicating with the the Desplaines, about four feet. To render the Desplanes and Illinois navigable for smal! boats and flats requiring but a small draught of water, noth- ing more is necessary than the construction of sluices, in a few places where there are ripples of a sufficient width to admit the boats to pass through them. This may be effected by clearing away the loose stones from the bottom, and forming banks riveted with stone two or three feet high, on each side of the sluice. Thus, a water communication between the Illi- nois and Lake Michigan may be kept open at all times sufficient to answer all the purposes for which a canal will be wanted, for many years to come. A canal uniting the St. Joseph of the Lake with the Illinois, by way of the Kankakee, may be con- structed also in a similar manner, and with great facility, ex- cept that the distance by this route is considerably greater. ^ * Thereupon counsel for complainant read from the report of R. Graham and Joseph Philips, which begins on page 8 of said Gov- ernment document: 2018 “Kaskaskia, April 4th, 1819. Sir: In addition to the notes of Mr. Sullivan, the surveyor, which describe the face of the country over which the lines were run, we beg leave to suggest some views which occurred to us on the subject of communications between the River Illi- nois and the Michigan Lake. By reference to the map herewith forwarded, it will be seen, that the little River Plein, coming from the northwest, ap- proaches within ten miles and a quarter of Lake Michigan, and then bending to the southwest, united with the Theakiki, at the distance of about fifty miles, and forms the River Illi- nois.. The country between the lake and the Plein, at this point of approach, is a prairie (natural meadow) without trees, covered with grass, and to the eye, a perfect level. From the bank of the Plein, standing on the ground, the trees are dis- tinctly seen, with the naked eye, at Fort Dearborn, on the shore of the lake; from Fort Dearborn they are, in like man- ner, seen on the bank of the Plein. Standing on any inter- mediate point, between the lake and the river, and the judg- ment is at a loss to say to which side the ground declines, and 710 Graham and Philips Report. — Continued. whether the level of the Plein or the lake is the highest. It was, however, determined, from certain data, that the level of the river was two feet, or thereabouts, above the level of the lake. From this view it would seem that the cutting of a canal 2019 in this place between the Plein and the lake would be a work of neither skill, difficulty, or expense. Small, however, as the labor would be, under this view, it is still diminished upon a close, examination, and by finding that an arm of the lake called Chicago puts out in the direction of the Plein, and that an arm of the Plein, also called Chicago, puts out in the direc- tion of the lake. They approach within two miles of each other; so that in common water, there is only dry ground to that extent between them. The character of these two arms is essentially different; that of the lake being but about sixty feet wide, and from ten to forty feet deep; that of the river being, in high water, from four to six feet deep, and in places, a mile wide, and in low water, either dry or reduced to a gutter. Between the heads of these two arms is also a gutter, which is dry in the dry seasons of summer and fall, and full of water in the spring, and, when thus filled with water, the boats, of six or eight tons, engaged in the Mackinaw and Mississippi trade, run through, backwards and forwards, so as to make no portage between Mackinaw and the Mississippi. This gut- ter, judging from the appearance of others now forming, was, at first a path worn out by the feet of those who carried things across the portage, and afterwards deepened by the attrition 2020 of the waters, until formed into a little canal. The wind, alone, gives the water a current in this little canal, and its direction depends upon the course of the wind. Objects have been seen to fioat out of it, from the same point, to the river and to the lake. It is incontestibly true, that an east wind will drive the water of the lake through this gutter into the Plein, and that water from Lake Michigan has been discharged by this outlet, into the Mississippi and thence into the Gulf of Mexico. It is equally incontestible, that the waters of the Plein have been driven by the same channel into the lake; and these phenomena may now be witnessed, at any time, when the waters are high and the wind blows hard. It follows, therefore, that to finish the canal began by nature, in this place, would require, as we have already said, but little of skill, time or expense. On open- ing the canal, however, two difficulties would be experienced. 1st. The Plein would be found to be above the level of the canal ; its water, of course, would be diverted from its natural channel, and ]3ass by the canal into the lake. 2d. Supposing that evil remedied by a lock to lift vessels into the Plein, yet the Plein, during half the year, does not 711 contain water enough to float a boat, and so could not become useful as a national highway. 2021 To remedy this defent of water in the Plein, two projects suggest themselves. 1st. To sink the bed of the Plein below the level of the canal, and thus increase the depth of the Plein as well by feeding it out of the lake, as by collecting its water into a narrower channel. 2d. To make the canal united with the Plein lower down in its course. A few miles lower would be sufficient to give the water of the lake a descent into the river, as the Plein has a sensible descent in this place, inso- much tliat the people of Chicago call it ‘‘The Kapids,'’ having no other word to distinguish moving water from that which stands still. Of the Plein below its point of approach to the lake, we would remark, that it has hardly the attributes of a river, being in most places without current, and without banks, lying as a sheet of water in the prairie, sometimes a mile wude, and so shallow that the tall grass appears almost everywhere above its surface. Having said thus much of the facility of communication by the Chicago, we would now remark that several other routes are ]ierfectly practicable. 1st. From a point in the lake south of Chicago to enter the Plein below Mount Juliet, at or near what is called Lake DuPage, but which is only a dilation of the waters of the Plein. This route would lay over level prairie, through a multitude of small lakes, or ponds, which have neither name or place in any map. 2d. 2022 By a canal leaving the lake near its south end, and uniting with the Theakiki just above its confluence with the Plein. Both of these canals would be fed from the lake, would require few or no locks, would go over ground of the same sort, would be 50 or 60 miles long, and would join the waters of the Illinois at points from which it is constantly navigable. A third route was spoken of, but not seen by us. It would lie between the Theakiki and the St. Joseph of the Lake. Information says, that it has been practiced by French traders. You will per- ceive, sir, that we have not spoken of the nature of the soil through which these several routes would pass. Not being our business to search for, and report upon the practicability of water communications, our observations were limited to what . fell under the eye while engaged in another duty, and in mak- ing this report to you, it is our object to excite inquiry, not to furnish plans of practicable projects. We shall, therefore only say, on this point, that the country in general, and the bed of the Plein, exhibited much loose stone and pebble, and firm ground. To conclude, the route by the Chicago, as followed by the French since the discovery of the Illinois, presents at one sea- son of the year an uninterrupted water communication for boats of six or eight tons burthen, between the Mississippi 712 Alvord, — Direct Exam. — Continued. 2023 and the Michigan Lake; at another season a portage of two miles; at another a portage of seven miles, from the bend of the Plein to the arm of the lake ; at another a portage of fifty miles, from the mouth of the Plein to the lake; over which there is a well beaten wagon road, and boats and their loads are hauled by oxen and vehicles kept for that purpose by the French settlers at the Chicago. Eespectfully, Your obedient servants, (Signed) E. Graham, The Hon. J. C. Calhoun, Joseph Philips. Secretary of War, Washington.” 2024 Thereupon counsel for complainants offered from the book entitled ‘YWcount of an Expedition from Pittsburgh to The Eocky Mountains, Performed in the years 1819, 1820, by Order of the Hon. J. C. Calhoun, Secretary of AYar, Under the Command of Maj. S. H. Long, of the L^. S. Topographical Engineers, Compiled from the Notes of Major Long, Mr. T. Say, and other Gentlemen of the Party, by Edwin James, Botanist and Geologist to the Ex- pedition. In Three Volumes. Volume I. London: Printed for Longman, Hurst, Eees, Onne and Brown, Paternoster-Eow 1823.” The title page, dedication and map; said map was received in evi- dence and will be found in Atlas, p. 3921; Trans., p. 6496;.Abst., p. 1917. 2026 Thereupon the witness was shown Volume 58 of the ^Mesuit Eelations,” which volume was marked ‘LAlvord Exhibit 7 for identification,” the title page of which is as follows: The Jesuit Eelations and Allied Documents. Travels and Explorations of the Jesuit Missionaries in New France — 1610-1791. The Original French, Latin and Italian Texts, with English Translations and Notes ; Illustrated by Portraits, Maps and Facsimiles. Edited by Eeuben Gold Thwaites, Secretary of the State Historical Society of Wisconsin. Vol. LVIll. Ottawas, Lower Canada, Irocpiois, 1672-1674. Cleveland: The Burrows Brothers Company, Publishers, MDCCCNCIX. .Did the witness testified that he was accpiainted with the docu- ment contained in said book and known as the Eelation of Father 713 Dablon; that Father Dablon was the head of the Jesuits at Quebec and his information was based upon the letters that came from all the Jesuit Fathers to himself and historians generally accept, of course, what he says as based upon such knowledge. The 2027 document is entitled, ‘‘Kelation of the Discovery of Many Things Situated to the South of New France, Made in 1673- August 1, 1674.^^ It was in the nature of a report to his superiors, and thereupon complainant read in evidence the passage on page 105, as follows : ‘‘The fourth remark concerns a very great and important advantage, which perhaps will hardly l)e believed. It is that we could go with facility to Florida in a bark, and by very easy navigation. It would only be necessary to make a canal, by cutting through but half a league of prairie, to ])ass from the foot of the Lake of the Illinois to the River Saint Louis. Here is the route that would be followed: The bark would be built on Lake Erie, which is near Lake Ontario; it would easily pass from Lake Erie to Lake Huron, whence it would enter Lake Illinois. At the end of that lake the canal or excavation of which I have spoken would be made, to gain a passage into the River Saint Louis, which falls into the Mississippi. The bark, when there, would easily sail to the Gulf of Mexico.” 2030 The Mississippi River was called by various names until the name Mississippi was finally settled upon. Joliet named it after the family name of a count Frontenac, the river Baude. Marquette wanted it named, to name it after his particular holy day, and call it the river of the Magic Conception. Louis XIV, finding it was the great river of central North America, wished to attach his name to it, and in the edict of 1712 issued for another purpose, he calls it the St. Louis River, and then, of course, it has always been called the Mississippi River after the Indian name. The Illinois has also had several names. It has been called 2031. “The Divine”; it has been called the “Seignelay”; it has been called the “Illinois”, and it also has been called the “St. Louis.” Witness Alvord, Continuing. Thereupon counsel for complainant offered the Thevinot map in evidence, between pages 154 and 155 of Volume 59 of the Jesuit Relations. Said map was received in evidence. (See Atlas, p. 3922; Trans., p. 6509; Abst., p. 1917.) (The book “Alvord Exhibit 8” handed to witness.) 714 Alvord,— Direct Exam. — Continued. This is a publication in two parts which were bound together by E. Dana. The first part is a description of the bounty lands in the State of Illinois; and the second part is a description of the roads and routes by land and water through the Territory of the United States. It is a simple guide book showing the various routes to be traveled in going over the United States. Mr. Dana had a large experience in these routes and traveled most of them him- self. Of course, historians accept such material as this as very good evidence, because the purpose is to guide travelers, and the purpose of the work would be defeated if mistakes or decep- 2032 tions were to be found in it. That is the standing in which historians would hold it. Historians and scholars in history regard it as a reliable book to show the routes throughout the United States. And thereupon the book was offered in evidence, the full title of which is as follows : Description of the Bounty Lands in the State of Illi- nois ; Also, the Principal Roads and Routes by land and water through the Territory of the United States, Extending from the Province of New Brunswick, in Nova Scotia, to the Pacific Ocean, Embracing the Main Interior and Cross-roads between the Towns and Places of Most Note; by E. Dana, Cincinnati, Looker, Reynolds and Company, Printers, 1819.’^ 2033 Also, the first, second, third and fourth paragraphs on page 14; then the supplemental title page which constitutes page 49 of the book. It is unpaged, but the paging goes on con- tinuously calling for page 49 at that page, and the introductory note descriptive of the routes constituting pages 51, 52 and 53, and the passage occupying pages 57 and 58, constituting Route No. 2 by water; and top on the first column on page 51, the item be- ginning St. Louis — Counsel for Complainant. The others being routes other than this one, I apprehend that the reading of this entire matter would be necessary to make the entire force of the evidence clear, and whether I read it and let Mr. Scott look at it, or let Mr. Scott look at it first and then read it, is a matter that is immaterial. Counsel for Defendant. We object on the same grounds we have heretofore objected, and on the grounds it is incompetent. 715 irrelevant and immaterial, and it does not appear from facts known to the author but derived from various sources. And thereupon complainant read the following: ‘‘Military Bounty Lands. Introductory Remarks. One 2034 tract of country, which has been appropriated and surveyed for the bounty lands to soldiers who served in the late war between the United States and Great Britain, is situated be- tween the rivers Mississippi and Illinois, extending from their junction by a meridian line near the river, precisely 169 miles; presenting an irregular curvelinear triangle, whose acute angle is at the confluence of the two rivers. The southern ex- treme forms a point; the northern is spread out to an extent of 90 miles wide ; half way between the extreme, the width is 54 miles. The base line, which is 79 miles above the junction of the Illinois with the Mississippi, is almost 51 miles long. The whole area surveyed contains 5,360,000 acres, of which no more than 3,500,000 have been appropriated for bounty lands; the residue consists partly of fractional sections, bor- dering on the great rivers, and partly of lands that were re- turned by the public surveyors as unfit for cultivation. The Mississippi on the northwest, for about 250 miles, and the Il- linois for nearly the same distance, on the northeast, — form boundaries to the military bounty lands in the State of Illi- nois; which occupy a northern latitude between 39 degrees 6 minutes and 41 degrees 40 minutes. That is, do these great rivers in their diverging course, with Rock River on the north, form a spacious peninsula, furnishing a border to the bounty lands by a sheet of navigable water more than 500 miles in 2035 extent, leaving no part of that tract distant farther than 45 miles and the greater part not exceeding 20 from navigable water. Rock River, navigable for 300 miles, deriving its source near Green Bay, and an arm of Lake Michigan and winding its course through a fertile country, in its most southern point reaches within two miles of the eastern part of the northern boundary of the bounty lands, and from thence flowing northwestwardly, pours its waters into the Mississippi about 40 miles above the northwestern angle of the bounty ■ lands. A water communication may be easily opened between the Illinois and Lake Michigan by an excavation across the por- tage which separates the waters of the Plein, a branch of the Illinois, from those of the Chicago, a river of the Lake; the distance between the mouth of the Plein and the Lake, not ex- ceeding 35 miles. The portage will afford a canal at a small expense, the distance being only three miles and so low a level as to be flooded in the spring freshets by the inter- mingled waters of the Plein and Chicago, sufficiently deep to 716 Extract, — Bounty Lands. — Continued. admit loaded boats to pass from tbe lake to the Illinois. To complete this contemplated canal, 100,000 acres of land have long since been appropriated by Act of Congress. ‘‘The navigable water communication between the Illinois 2036 and the lakes will eventually much increase the value of the bounty lands by affording a market on the lake for produce, by a transportation on water not much exceeding 170 miles. The author laboriously employed the greater part of twelve months in traversing the military bounty lands in the State of Illinois with a view to acquire a knowledge of the natural qualities and peculiar character of the several parts. His remarks on the quality of the soil, the intrinsic and rela- tive value, sites for towns and mill seats, minerals and fossils, mostly noted on the township and sections to which they re- fer. From personal observation, as well as the information ob- tained from others, he has been enabled to detect diverse er- rors and misrepresentations in the descriptions of those lands. Such has been the laborious attention of the author in ac- quiring the minute knowledge of the bounty lands by tracing the lines of the public surveys, the various streams and water courses, and in critically exploring almost every part of that region, as well as by diligent inquiry of public surveyors and other intelligent men entitled to credit from their known 2037 acquaintance with the lands, he feels a strong confidence in the correctness of his description.’’ And thereupon counsel for complainant explained that: Page 49 is the title page of the second part and the essence of it is de- scriptive of the principal roads and routes by land and water through the Territory of the United States, extending from the Provinces of New Brunswick and Nova Scotia to the Pacific Ocean, embracing, etc., introductory remarks. “The author has for more than 28 years traversed by the principal routes and roads, almost every section of the United States, and the southern parts of the two Canadas, bordering on an extensive range of the Great Lakes, and constantly kept an itinerary wherein he has noted from day to day the routes and distances from place to place, by land and water, correct- ing his own estimate by that of other experienced men, such as hunters, Indian agents, merchants, travelers, officers of the 2038 army, as well as by the routes and roads delineated on maps and published in newspapers, almanacs, pamphlets, voyages and itineraries, statistical or geographical surveys. Indeed, he has resorted to every expedient that could enlarge or cor- 717 rect his information on the subject except actual survey and measurement. Having at length matured his system by ranging and group- ing his routes into what he deemed the most natural and geographical order, he has ventured to present to the public the result of his labors, containing a description of 260 routes and roads; some by land, some by water, and others by land and water, among which are noted several new and extensive routes never before published. The greater part of all these routes the author has himself actually traveled over, noting down as he passed the distance from place to place. In this department of science it is impossible in a new coun- try (where actual surveys of course and distances have not been had) to attain to precise accuracy; and the author, al- though he flatters himself that he has embraced more new routes and noted the distances of old ones with more correct- ness than any other man who has attempted a publication, is sensible that in so arduous and complicated a business, where exact information is unattainable, the distances, between places, in several remote and less frequented portions of the 2039 country have not been estimated with the strictest accuracy. Here and in all other matters pertaining to the subject, his endeavors and most arduous and persevering labors have l3een facilitated from the candid and enlightened public. He so- licits both the indulgence and the notice of his errors which he purposes to rectify in a future edition. The geographer and the man whose employment is that of tracing the courses of public roads, find a mutual advantage in the labors of each other. Like metaphysicians, they cannot sit down and spin out 2040 their systems from their brains. To obtain the object of their pursuit, with precision and accuracy in presenting their images and correct views of form and space on the surface of a region, they must unite the labors of the body to those of the mind, by traversing si^acious areas and various courses they attempt to describe. In this respect the author presumes his manner of life gives him a superiority over most authors in this country who have pub- lished before him. And if his health is preserved, he intends to persevere in acquiring a greater accuracy in courses and distance of the routes for public roads by continuing his travels variously over the United States. The several routes of roads are numbered and printed in order according to the numbers ; beginning first with the longest routes which extend westwardly or easterly, between the Atlantic coast or the great western lakes, and the Mississippi River; then follow those routes, extending northwardly and southwardly between the great lakes and the ocean; secondly, will follow shorter 718 Extract, — Bounty Lands. — Continued. routes, such as passing out of one state or territory into another; and thirdly the remaining routes not before de- scribed, which are confined within the limits of a State or territory. The last group of routes will have their commencement in the most eastern sections of the United States, the descrip- tion being continued westwardly in geographical order. A . 2041 list of all the routes will be inserted in the latter part of the volume in order as they are printed, with a reference to the page where described, where one route runs into another previously described, to avoid repetition, the sum total only of the intermediate spaces in the distance before set out will be specified; the number of the route interfered with, being- referred to. The state or territory where a route ends or a route enters from another, will be named but not repeated on the same route.’’ And thereupon complainant read from page 57, which is route number two, “by water from Quebec, lower Canada, to New Orleans, by Montreal through Lakes Ontario, Erie, Huron and Michigan; thence up the Chicago Eiver and over the portage to and down the Eiver Plein, a head branch of the Illinois and down the latter to the Mississippi.” * * * “Across Lake Michigan to Fort Dearborn, up Chicago Eiver, Ind., over the portage and up the Plein to the junction with the Theakiki, the main head branch of the Illinois. ’ ’ Professor Alvord further testified : 2042 The book marked “Alvord Exhibit 9” which is entitled “The Navigator” containing directions for navigating the Ohio and Mississippi Eivers, * * * Pittsburgh, 1824, — is a book for the purpose of giving directions for navigating the west- ern waters, and was gotten up specially for voyages in the west. It has been used time and again by historians for the purpose of learning how the navigation and commerce was carried on in the western waters. I am acquainted with its standard and reputa- tion. It is regarded as a very good source for the history of western commerce and western trading and western navigation. Thereupon counsel for complainant otfered the following pas- sages, the title page which reads as follows : “The Navigator; containing directions for navigating the Ohio and Mississippi Eivers; with an ample account of these much admired waters, from the head of the Tormer, to the 719 2043 mouth of the hitter; and a concise description of their towns, villages, harbors, settlements, &c. With maps of the Ohio and Mississippi, to which is added an appendix containing an account of Louisiana and of the Missouri and Columbia Rivers, as discovered by the voyage under Capts. Lewis and Clark. Pittsburgh. Printed and published by Cramer and Spear, Franklinhead Bookstore, Wood Street, 1824.” 2044 In the chapter headed ^‘The Mississippi River,” pages 113 and 114. (The preface is dated February, 1811.) ‘^Between a branch of the Chicago and Illinois River which empties into Lake Michigan, there is a portage of two miles, from this portage to the lake there is a batteaux navigation of sixteen miles. By this happy connection of waters, there is a complete communication from New York to New Orleans, through that northern and extensive route, having only about 28 miles land carriage in the distance of nearly 4,000 miles, the greatest stretch of inland navigation perhaps known in the world. This route from New York is by the Hudson River to Al- bany; thence by land to Schenectady, 16 miles; thence up the Mohawk River and through a canal of four miles into Wood Creek; thence into Lake Ontario and up that lake and Niagara River to Queenstown, seven miles below the Falls of Niagara; thence ten miles land carriage around several falls to Chip- pewa; thence up the river into Lake Erie, and through that lake into Lake St. Clair ; thence into Lake Huron through Lake Michigan and into the Chicago River mentioned above ; thence down the Illinois and Mississippi Rivers. This route com- prehends the most extensive channels and gives a wide scope to trade in general, and may one day be made a profitable use of to individual citizens, as well as highly advantageous to the trade and commerce of the United States, especially if they get possession of the northern fur trade now carried on by the British.” Professor Alvord further testified: 2045 This is a book that was printed to give a description of II- * linois, for the purpose of encouraging immigration into the state in 1837. The historians regard this book as contemporary evidence for facts that are stated in it. It does contain accounts of the various rivers, etc., and the historian would regard such statements as authoritative statements of contemporary men and knowledge. 2046 It is an accurate and reliable book for matters of fact that are therein stated. Of course historians would use a book 720 like that with some criticism, as one has to do, but there would be matters of fact stated iu there that would be accepted at their face value by the historian, as evidence of a contemporary period. Alvord Cross-Exa m iu a ti on . by counsel for defendant as to the foundation of his testimony, the witness testified : I am not familiar with the author. I have known the book for possibly a year. Have read the book, — partially, for certain things in it. A book of that sort, you must remember a historian would not read through. He would be looking for certain facts in it. I have a graduate student that is investigating the question of the commerce and trade and immigration in the southern Ih 2047 linois, down the Ohio. The graduate student was referred to the book by Professor Greene, a colleague of mine in the University of Illinois. Then I have also talked in regard to the book with Professor Sparks of the Universitj^ of Chicago. I talked with him a few days ago about the book, since engaged to testify here. They are the only people I have talked with in regard to this book. I have seen, in the course of my investigations refer- ences to that book as being — it was quoted as authority. I 2048 should think it might have been Hurlbut’s Ohio, but I am not certain. He has written a very large number of histories of the trade route and Indian trails, and so forth. I should think that would be the most likely place I have seen it, but I may be mistaken. I do know what the character of this book, ‘Hllinois in 1837” is; it is a description of Illinois and also has a kind of — well, I suppose you would call it a directory of Illinois itself. Some of the facts which are stated there were unquestionably within the author’s knowledge. He has obtained knowledge of those 2049 facts, either hy personal inspection or by talking with others or reading upon them. Q. Hid you talk with Professor Greene after he had referred the book to the post graduate student? A. No, I didn’t mean to say that. My knowledge of Professor Greene’s knowledge of the book comes through the graduate student. Q. You then have had no personal conversation with Pro- fessor Greene about this book! A. No. Q. The only man with whom you have talked about it before you were engaged to testify in this case was Professor Sparks! A. Yes, and a graduate student. Q. Do you know any men by whom that book is accepted as authority! A. Why, it would be used by — Q. Wait a moment. Will you kindly answer the question! I am asking you about your personal knowledge. A. Will you please ask the question again! Witness. As to knowing personally any man who accepts that book as authority, it will be used as an authority by this 2050 graduate student, who has written a thesis for the master’s degree, and quoted in that thesis. We use books — after we look at every book, we ask: Can we accept this statement or that statement, and we investigate each individual statement. He is a witness, and he has got to prove himself, and that book would have to be proved in that way by an historian. Well, I have tested the statement in regard to the — certain of the rivers in that book, and they seem to be in accord with other historical testimony. I have done that for the past week. I was investigating this particular historical problem for purposes of this case. It is in accord with the testimony of all the historical sources — Q. No, what statement! A. In regard to the use of the Des- plaines Eiver. 2051 Q. What statement in this book called ‘‘Illinois in 1837” have you tested during the past week! A. The statement in regard* to the use of the Desplaines Eiver. There is one — it takes the Desplaines Eiver, as I remember it now, a paragraph upon the Desplaines Eiver; and that seemed to be in accordance with other historical testimony. Q. What statements did you compare it with! A. I was in- vestigating all the historical testimony on the Desplaines Eiver, and I had in my mind the testimony of witnesses for 150 years in regard to the use of it; and it agreed with that testimony. 722 Alvordy — Cross-Exam. — Contimied. Counsel for Defendant. We submit the book is not competent evidence, your Honor. The Court. Let it go in for what it is worth. The title page is, ^‘Illinois in 1837; a sketch descriptive of the situation, boundaries, the face of the country, prominent districts, prairies, rivers, minerals, animals, agricultural productions, public lands, plans of internal improvement, manufactures, etc., of the State of Illinois; also suggestions to emigrants; sketches of the counties, cities and principal towns in the 2052 State ; together with a letter on the cultivation of the prairies by the Hon. H. L. Ellsworth, to which are annexed the let- ters from a rambler in the west. Philadelphia. Published by S. Augustus Mitchell and by Grigg &> Elliott, No. 9 N. 4th street, 1837. Entered according to the act of Congress in the year 1837 by S. August Mitchell in the office of the District Court for the Eastern District of Pennsylvania. Stereotyped by J. Fagan, Philadelphia. ’ ^ Counsel for complainant offered in evidence the paragraph at the top of page 36 and the same was received and read in evi- dence and is as follows : ‘‘The Desplaines Piver is the northern head branch of the Illinois. It rises in Wisconsin Territory a Tew miles west of the Town of Eacine on Lake Michigan and flowing through the north part of the State it joins the Kankakee at the boundary line between LaSalle and Will Counties, where they form the Illinois Eiver. The Desplaines in its course of 150 miles, runs generally over a bed of limestone. The country along its borders is populating rapidly, notwithstanding its apparent deficiency of timber. About 42 miles above the mouth of this stream is a stream connecting it with the Chicago Eiver, through which boats of some burden have often been navigated into Lake Michigan. This route was used by the traders as a medium of com- munication between the great lakes and the Mississippi, from 2053 the first discovery of the country by Europeans; this cir- cumstance first suggested the idea of an artificial connection by means of a canal at this point. In the bed of the Desplaines Eiver, about 40 rods above its junction with the Kankakee, there is a fossil tree of a very considerable size. It is a species of phytolites, and is em- bedded in a horizontal position in a stratum of Newer Floetz sandstone, of a gray color and close grain. There are 51 feet and 6 inches of the trunk visible. It is 18 inches in di- ameter.’^ Professor Alvord further testified: Direct Examination. Alvord ’s Exhibit 10’^; being a book entitled ^^A Gazeteer of the States of Illinois and Missouri; con- taining a general view of each state, a general view of their 2054 counties — a particular description of their towns, villages, rivers, etc., etc., with a map and other engravings. By Lewis C. Beck, A. M., Member of the New York Historical Society, and of the New York Lyceum of Natural History. Albany; printed by Charles B. and George Webster, at their book store corner of State and Pearl streets, 1823.’’ is the first of the Gazeteers of Illinois. Upon this book is based largely the later Gazeteers. Beck was a man of some prominence in historical circles of his time, and collected his data very care- fully and has been quoted at great length ; followed very minutely by very many historians, since his time down to the present. As to its reputation among historians of Being an accurate and reli- able work or not, — it has a reputation of being a book, and as a source book for information in regard to the west at this time; and historians desiring to study the conditions in the west or to study any fact in regard to the West, would go to Beck’s 2055 Gazeteer among the very first books. Again, they would have to use it with critical judgment and would accept its statements as evidence that was to be ac- cepted. With these explanations and modifications, it would be accepted, and has the reputation among historians of being for the time of which it speaks and the places of which it speaks, an accurate and reliable book. Thereupon counsel for complainant read in evidence from part of book, page 151 : ‘‘The Eiviere Desplaines, a considerable stream in the 2056 northeastern part of the state. It rises in the low lands -bordering on Lake Michigan, has a southern and southwest- ern direction, and by union with the Theakiki, forms the Illi- nois. The valley of the river, which is generally about one mile in width is in the form of an inverted cone, terminated on both sides by regular banks, nearly parallel to each other. In ascending the river, the banks gradually decrease in width and at the distance of 30 or 40 miles up the river they form right angles with the course of the river — that on the right continuing an easterly, and that on the left a northwesterly curve. They then form an extensive curve encircling a large tract of flat prairie. This in summer is dry, but in the spring. 724 Alvord, — Direct Exam. — Continued. during’ high water, is a lake of about 20 miles in area. This lake communicates with both the Riviere Desplaines and Chi- cago Rivers, by means of a canal, which has been made partly by the current of the water, and partly by the French and Indians for the purpose of getting their boats across in high water. The distance from the Riviere Desplaines at the mouth of Portage Creek to Chicago, is 12 miles; but from the head of the creek to the head of the Chicago River it is only three miles. In wet seasons boats of considerable burthen pass from Lake Michigan to the Illinois River with the greatest ease.’’ Counsel for Defendant. What year was that! Counsel for Complainant. 1823. 2057 Page 19. — ^‘The information of traders and voyagers was such as left no doubt of the existence of a natural canal between Lake Michigan and the Illinois, at some seasons of the year, but as the country had never been carefully examined by men of science and observation, it was difficult to ascertain what were the facilities of forming an artificial communication. * * All talked of the project as practical but no one knew the manner in which it was to be accomplished. That the lakes should be united with the Hudson and Mississippi Rivers, was a project no one were willing to scrutinize lest its beauty might be destroyed. But thanks to the genius and enterprise of our citizens, theories and dreams have passed away, and have been succeeded by experiment and practice. A few years since the country south and west of Lake Michi- gan, was explored by Messrs. Phillips and Graham. In a very interesting report, which they made to the Secretary o'f War, four different methods of forming a communication be- tween the Lake Michigan and the Illinois River were pro- posed, viz., first, by uniting a branch of the Chicago River, 2058 which empties into Lake Michigan and a branch of the Des- plaines which runs a southeast course, and approaches with- in ten or eleven miles of the lakes and then turning to the southwest blends its waters with the Theakiki. These streams approximate within three miles of each other and when swelled by heavy falls of rain actually unite, so that boats of eight or ten tons burthen pass and repass from the lakes to the Mississippi, through this natural route. Secondly: It could be effected by opening a channel from a point on Lake Michigan south of Chicago, to enter the Des- plaines below Lake DuPage. Thirdly: By uniting Lake Michigan with the Theakiki above its junction with the Desplaines, and lastly, by joining the Theakiki and St. Joseph of the Lakes by which the French enjoyed a partial navigation when the Canadas were an ap- pendage to their empire. I shall examine each of these plans somewhat in detail, and first, the junction of the Chicago liiver with the Desplanes. What is called the Chicago Eiver or creek, is merely an arm of the lake, extending in a southwesterly direction three or four miles, and fed by one or two small streams coming from the north. Hence it is on a level with the lake, but at some seasons has a gentle current owing to the rains and freshets. On this stream, about four or five miles from the 2059 lake, is a trading establishment; and here the portage com- mences which, except in very dry seasons, is seldom more than three miles. From this portage to the Desplanes, a dis- tance of four or five miles, is a stream which is generally filled with water, and is navigable. The whole distance from the Desplanes to the lake is about 12 miles. The height of the Desplanes, at the point where the swamp unites with it is calculated at from 8 to 12 feet. It approaches so near a level that the view from the swamp to the lake is almost uninter- rupted. This is further proved by the very fact, that at some seasons there is a communication between the Chicago and the Desplanes, which could not be the case if there was any high land intermediate. The Desplanes, for 1-1 or 16 miles below its junction with the swamp before mentioned has scarcely any fall and may be said to be on a level. Below this the rapids commence and continue for a considerable distance. A short distance below the commencement of the rapids, the lake and Desplanes are supposed to be on a level. To this place, therefore, the canal would only require an average excavation of 6 or 8 feet. It is the first opinion of some who have attended to this subject, that the canal should be fed from the Desplanes ; but the objections to rivers for supplies of water, apply with 2060 double force in this section of the country. It is well known that in the spring, all these streams are so filled with water as to overflow their banks for a considerable distance; dur- ing this season no canal would be safe, but must unquestion- ably be swept away. Again, in the Autumn they are on the .opposite extreme; creeks, ponds and rivers, are completely drained of their water, to supply that immense and greedy conductor, the Mississippi. It is not infrequently the case that the savages and travelers are compelled to carry water with them in bladders, and that they cross beds of large streams without finding sufficient to quench their thirst. But there is another objection to using rivers as feeders which, though not so imminent, becomes eventually of serious mo- ment. When the country shall he cultivated, streams swollen by showers, will bring down, mixed with their waters, a pro- portion of mud, and that in the stillness of a level canal will 726 Alvord, — Direct Exam. — Continued. subside and choke it up. There are also other objections which are, that those who construct the canal may not be acquainted with the true character of the streams, and that by the progress of industry the large springs and swamps which are the principal supply of these streams will be dried All these objections and difficulties would be obviated by feeding the canal with the pure water from the lake. And according to the facts above stated, everything is in favor of 2061 supplying it from that inexhaustible reservoir. It would have such a constant supply of water, with so little variation, that the safety of the canal would never be endangered.’’ Professor Alvord further testified: 2062 The book marked ^‘Alvord Exhibit 11,” entitled a ‘‘Topographical Description of the Western Territory of North America. By Gilbert Imlay, a Captain in the American army during the war, and commissioner for out lands in the 2063 back settlements. The 3rd edition, with great editions. Lon- don. Printed for J. DeBrett opposite Burlington House, Picadilly, 1797.” is a topographical description of western territory in which Gil- bert Imlay, who was a traveler, has collected his own letters and also accounts of the west by other men, such, for instance, as Dr. Franklin’s Eemarks for the information of those who wish to become settlers in America, and Patrick Kennedy’s account of Journies up the Illinois; and Thomas Hutchin’s Historical Narrative and topographical description of Louisiana and West Florida, as well as Thomas Hutchins’ topographical description of Virginia, Pennsylvania, Maryland and North Carolina. Thomas Hutchins was a Lieutenant in the British Army that occupied West Florida after the close of the French and Indian war. He was a civil engineer, and was used by the British Gov- ernment for surveying purposes and making maps. In 1768 he came to Illinois with a Colonel — the name escapes me — who re- placed Colonel Eeed, Lieutenant Colonel Watkins. He lived in Kaskaskia for three years, and made maps of the Illinois country, which were regarded as authoritative maps for years afterwards. You can trace Hutchins’ influence in the maps of the West 2064 down to the end of the century and into the nineteenth. In 1778 he published this account of Virginia, Pennsylvania and Maryland and published maps — a map of the country. Later, as 727 you know, Hutchins was appointed as Surveyor General by the United States and laid out the western territory. He had ample authority to learn the West and is regarded by historians, and has been from that day that he wrote down to this, as one of the chief authorities for our knowledge of the west during this period. His work is considered accurate and reliable. Counsel for complainant otfered in evidence from Surveyor General Hutchins’ letter on page 503, paragraph 2, as follows: ^^The Illinois Eiver furnishes a communication with Lake Michigan by the Chicago River, and by two portages between the latter and the Illinois River, the longest of which does not exceed four miles.” Thereupon Professor Alvord further testified: Gilbert Imlay was a man that was traveling through the west here, sometime after the Revolution, about 1791, or 1792, for the purpose of deciding where he and friends would settle. He wrote letters home and these were collected and printed in 1792. The first edition of Imlay ’s work, contained only his letters, but 2065 the later editions — to the later editions were added twelve other pamphlets, etc. This is the third London edition and the quotation is from Gilbert Imlay himself, his letter — Imlay is regarded as one of our best witnesses for western conditions after the Revolutionary war. Imlay is the writer of the particular let- ter that is now under consideration. Counsel for complainant then read in evidence beginning with the last paragraph on page 71, as follows : have mentioned that it is about 230 from the mouth of the Ohio up the Mississippi to the mouth of the Missouri and about 20 from thence to the Illinois which is navigable for batteaux to its source. From thence there is a portage only of two miles to Chicago, which is also navigable for bat- teaux to its entrance into Lake Michigan, which is a distance 2066 of 16 miles. This lake affords communication with the river St. Lawrence, through Lake Erie, passing Niagara by a port- age of 8 miles.” Professor Alvord further testified: This book which has just been marked Alvord Exhibit 12, ‘Hhe St. Clair papers. The life and public services of Arthur St. Clair, soldier of the Revolu- tionary war; President of the Continental Congress; and Governor of the northwestern territory, with his correspond- 728 Alv or cl, ^Direct Exam. — Cont in ued. ence and other papers arranged and annotated by William Henry Smith, Volume 2. Cincinnati : liobert Clark & Co., 1882 .’’ As the title says, it is the transcription of the letters of Arthur St. Clair who was governor of the northwestern territory, first governor. The work has been well done by Mr. Smith and the transcriptions have been accepted as authoritative by historians. St. Clair was interested of course in the west, as historians say, and all that pertained to the west was of interest to him, and particularly the trade. And he was interesting himself in gather- ing statistics in regard to trade, etc. It is regarded as reliable by historians. It would be a statement by a contemporary of a general belief in regard to the question at issue. Thereupon counsel for complainant read in evidence on page 174 the first and second paragraphs, as follows: 2067 ‘‘The commerce of the Illinois Country is of some import- ance in itself, but more so when considered as connected with the Spanish side of the Mississippi. The villages on that side of the river having been originally settled by the French and under the same Government as that part which is now in the possession of the United States, the connection between them is still very intimate, and favors a commercial inter- course which, though illicit, might be carried on by the citi- zens of America without risk. It is carried on at present without risk, but is, unfortunately, almost entirely in the hands of the British. Even much the greatest part of the merchandise for the trade of the Missouri Eiver is brought from Michilimackinac by that of the Illinois partly by the Spanish subjects themselves and partly by British traders. The manner is thus: The Spanish subjects either introduce 2068 them at once, in consequence of an agreed connection with their commandants, or they are brought down to Cahokia and landed there, and afterwards carried over to St. Louis, as opportunities can be found. What is brought by the British traders the Spanish subjects purchase and pay for on the American side, taking all the risk that attends the introduc- insr them into their own countrv upon themselves. The furs in which these goods are generally paid for (deer skins an- swering better than furs at the New Orleans market) are carried to Canada by the same communication ; that is to say up the Illinois Kiver, up to Chicago, and from thence with a small portage into Lake Michigan, and along that lake to Michilimackinac; or from the Chicago up the river Aux Plain, and by a portage into a mud lake. In the spring of the year the waters of the Michigan and 729 the Chicago rises each to such a lieight that the intermediate^ space is entirely overflowed, and is passable l)y the vessels in use there, which are bark canoes, but which carry a very considerable burden, and are navigated by three or five per- sons.” In connection with this passage, Professor Alvord testified that ‘‘Michilimackinac” is a name given to Mackinac regularly in the eighteenth century. I don’t think I have ever seen Mackinac given in an eighteenth century document; always Michilimackinac. Thereupon counsel for complainant read in connection with it the title of the paper in which this statement occurs, from })age 164: ‘‘Governor St. Clair, to the President. Peport of official proceedings in the Illinois Countrv from March 5th to June 11th, 1790.” 2069 Professor Alvord on being shown “Alvord’s Exhibit 13,” entitled, “Early Western Travels, 1748-1846, a series of an- notated reprints of some of the best and rarest contemporary volumes of travel, descriptive of the aborigines and social and economic conditions in the middle and far west during the period of early American Settlement, edited with notes, introductions, index, etc., by Keuben Gold Thwaites, LLl), editor of the Jesuit Relations and allied Documents; original journals of the Lewis and Clark Expeditions, Hennepin’s Voyage of Discover, etc. Volume IX; Flint’s letters from America, 1818-1820, 1904.” testified as follows: Flint was an Englishman who came over the early part of the ' last century and traveled in America, particularly interested him- self in the west. He spent quite a while in the west and his let- ters are particularly interesting for showing the social and eco- nomic condition during the years 1818-20. This is an au- 2070 thoritative reprint by Thwaites. It is a work like his Jesuit Relations that have given him a great deal of renown. Flint himself was a very keen observer, and historians make a great deal of use of his observations. Thereupon counsel for complainant read in evidence the letter- head title “Comparative Advantages of Several part of the United States.” Then page 186: “At a period not far distant, a communication between Lake Erie and Illinois River may be opened through the river Plein which empties itself into the lake. Craft are 730 A Iv 0 rd, — D i rect Exa m .—Continu ed. said to have already passed out of the one river into the other. ^ ’ As to ‘^Alvord Exhibit 14’’ being Volume 19 of this series 2071 of early western travels, entitled, ‘‘Ogden’s Letters from the West 1821-23.” — Ogden was a Yankee traveler, came out West here to view the land, traveled all through the west and has given the results of his observations in these letters. They are very keen, and he has the same sort of interest that Flint had and the letters are of the same general character. These letters were formerly printed in New Bedford, and this is an authoritative reprint by Eeuhen Gold Thwaite of the original letter. It is regarded as a very good source of information to the historians for that data of which it treats. Thereupon counsel for complainant read in evidence from Let- ter No. 5, page 53: “The rivers and streams that wash the various parts of this state” — ^what goes before it shows he is referring to Illi- nois — “are almost innumerable, and to particularize them all 2072 would be tedious to the reader and a waste of time to the writer. I shall barely mention some of the most noted of them. The Illinois is the largest that is peculiar to this state. This is a noble river, rising near (45) the south end of Lake Michigan. Its head branches are called the Plein and Thea- kakee or Kankakee. The Plein is navigable within two miles of Chicago Eiver of Lake Michigan, and boats are said to have passed loaded from one to the other. At high water the distance between them being a marsh, and in all the flats it is completely inundated. ’ ’ And counsel for complainant read in evidence the following: A portion of report No. 53 found in the Volume of Government re- ports of the second session of the eighteenth Congress, met in February, 1825, and entitled : “Eeport of the Select Committee to which was referred on 3rd ultimo, a memorial of the General Assembly of Illinois upon the subject of a canal communication between the Illi- nois Eiver and Lake Michigan, accompanied with a bill to aid the State of Illinois in the accomplishment of the same. 2073 February 1, 1825, Eead, and with the bill committed to a' committee of the whole house. The select committee to which was referred the memorial of the General Assembly of the State of Illinois, praying for aid from the United States in opening a canal to connect the I 731 waters of the Illinois Eiver and Lake Michigan, respectfully submit the following report: The memorial, represents what the committee find to be true, that in 1820 a law was passed by Congress authorizing the said state to open a canal through the public land& to effect this communication, which is required to be done within a given period. It further represents that the General Assembly has already proceeded so far as to appoint commissioners to explore the route and prepare the necessary surveys and estimate pre- paratory to its execution. It further represents that the state is unable, out of its own resources to defray the ex- pense of the undertaking, and, therefore, prays Congress to make to the State a grant of public land or such other as- sistance as may be thought most proper to enable the State to proceed with the work. In examining this subject, the attention of the committee has been drawn to several points which seem naturally to bear upon it; and, first, as to the practicability of making the proposed connection of those waters. On this branch of 2074 their inquiries, the committee can see no room to doubt. Al- though the report of the State Commissioners and Engineers had not been made to the General Assembly at the time of adopting the Memorial that has been referred to the Com- mittee, the Legislature of that State entertained no doubt on that point. Such, indeed, is the concurrence of scientific observations and actual experience in relation to that fact, that, in order to establish it, the report was not necessary. The experience to which the Committee refers is that of many years, and which is matter of of historical notoriety. It is that of repeated passages having been made, by uninterrupted navigation from the river into the lake.’’ 2075 Counsel for complainant explained that the Committee of Eoads and Canals to whom was referred the Memorial of the General Assembly of the State of Illinois, concerning the canal to connect Lake Michigan and the Illinois Eiver reported adopting this report of the Special Committee, and concurred in by the re- port of the whole house. This report appears verbatim in the volume just referred to and which is entitled: March 30, 1826, Nineteenth Congress, First Session, House of Eepresentatives. Eeport No. 147, Canal. Lake Michigan to Illinois Eiver. Mr. Stewart, from the Committee on Eoads and Canals to which the subject has been referred, made the following report.” (There follows the same report, same passage which has just been read from the preceding book.) Counsel eor Defendant. It seems to be, Mr. Eeeves, that this Alvord, — Direct Exam. — Continued. is short, and it is just as well to ask you now to read certain parts of it as ])art of your case. For instance, to follow on, where you sto})})ed they begin to refer to Major Long, and then they refer to Mr. Graham and Phillips in that report. They identifY Mr. Phillips and Chief Justice Philips of Illinois. These were the 2076 gentlemen who reported no water most of the year in the riYer. C ounsel for complainant at request of counsel for defendant then read in eYidence from the same report the following passage, which begins where the preceding passage left off, and is as follows: 'Mt is that of repeated passages liaYing been made by unin- terrupted naYigation from the riYer into the lake. AVith re- spect to the scientific obserYations that liaYe been made, the committee refer to the report of Major Long to the Secretary of AVar in' 1817, and which was printed by order of Congress. In this report (See Volume 2, Xo. 17 of the reports of the Session), it is stated that the Illinois EiYer is about 300 miles in length and is of Yariable width from 70 yards to one mile.’’ AVe IniYe this in Alajor Long’s report : 2077 “It is stated the Illinois EiYer is about 300 miles in length and is of Yariable width from 70 rods to one mile. It has a Yery moderate current, and a depth of water sufficient to ren- der it navigable at all times for boats of considerable burden about 230 miles from its mouth.” That is here in quotation marks and it is the quotation from Alajor Long’s report we read. “In speaking of the proposed canal, Alajor Long observes, L\ canal uniting the waters of the Illinois Eiver with those of Lake Alichigan may be considered the first in importcuice of any in this section of the country, and at the same time the construction of it would be attended with very little expense compared with the magnitude of the object. By a reference to the document before referred to, it will also be seen that another report was made on the same subject by Eichard Graham, Esq., and the late Chief Justice Philips, of the State of Illinois. AA^ithout quoting particularly from their intelligent report, it will be sufficient to observe that they coin- cide substantially with Alajor Long. They present, however, the further fact that it is perfectly practical so to employ the water of the lake as to furnish a full supply of water for the canal. 2078 As to the expense of this work, the committee have no certain data from which to deduce any very accurate calculation. Tak- 733 iiig Major Long’s report to be sulistantially correct, the lengtli of the canal will not exceed 70 miles. The presumption is it will be less.” As to '^Alvord’s Exhibit 14,” ^M^aSalle and the Discovery of the Great West by Francis Parkman, Boston : — Little, Brown & Co.” Of course historians regard this volume from a very ditferent point of view from those that have gone before. This belongs to the class of authorities. Parkman is an historian who has ex- amined the sources of information with regard to the West and has come to conclusions thereon. I have followed— historians have followed Parkman very carefully and realize that he is one of the most careful scholars that America has produced. His statements are based upon a very minute analysis of the sources of informa- tion, and he is regarded as an authority upon various phases of history of which he has written. It is an authority; it is not a con- temporary statement, hut it is a hook of conclusions from sources and contemporary statements. 2080 . Counsel for complainant then read in evidence page 64 : ^^They left the Arkansas villages, and began iheir home- ward voyage on the 17th of July. It was no easy task to urge their way upward, in the heat of midsummer, against the cur- rent of the dark and gloomy stream, toiling all day under the parching sun, and sleeping at night in the exhalations of the unwholesome shore, or in the narrow confines of their birchen vessels, anchored on the river.” * * ^ (This is under the date of 1673.) Page 51: ”He begins the journal of his voyage thus: ‘The day of the Immaculate Conception of the Holy Virgin; whom I had continually invoked, since I came to this country of the Ot- tawa s, to obtain from God the favor of being enabled to visit the nations on the Eiver Mississippi, — this very day was pre- cisely that on which M. Joliet arrived with orders from Count . Frontenac, our Govenor, and from M. Talon, our intendant, to go with me on this discovery. I was all the more delighted at this good news, because I saw my plans about to be accom- plished, and found myself in the happy necessity of exposing my life for the salvation of all these tribes; and especially of 2081 tile Illinois, who when I was at Point St. Esprit, had begged me very earnestly to bring the word of God among them. ’ The outfit of the travelers was very simple. They provided themselves with two birch canoes, and a supply of smoked meat and Indian corn, embarked with five men; and began their 734 Extract j — Parkman LaSalle, — Continued, voyage on the 17th of May. They had obtained all possible information from the Indians, and had made, by means of it, a species of map of their intended route. ‘Above all,’ writes Marquette, ‘I placed our voyage under the protection of the Holy Virgin Immaculate, promising that, if she granted us the favor of discovering the great river I would give it the name of the Conception.’ Their course was westward; and, plying their paddles, they passed the straights of Michilli- mackinac, and coasted the northern; * * * They soon reached the river Menomonie, and ascended it to the village of the Menomonies, or Wild-Eice Indians. * * * The trav- elers next reached the mission at the head of Green Bay; en- tered Fox Kiver ; with difficulty and labor dragged their canoes 2082 up the long and tumultuous rapids. Crossed Lake Winne- bago; and followed the quiet windings of the river beyond, where they glided through an endless growth of wild rice and scared the innumerable birds that fed upon it. * * * On the seventh of June they reached the Mascoutins and Miamis, who since the visit of Dablon and Allouez, had been joined by the Kickapoos. ^ * The travelers had no sooner reached the town than they called the chiefs and elders to a council. Joliet told them that the Governor of Canada had sent him to discover new coun- tries, and that God had sent his companion to teach the true faith to the inhabitants; and he prayed for guides to show 2083 them the way to the waters of the Wisconsin. The council readily consented; and on the 10th of June the Frenchmen em- barked again, with two Indians to conduct them. * * * The river twisted among lakes and marshes choked with wild rice; and, but for their guides they could scarcely have followed the perplexed and narrow channel. It brought them at last to the portage, where, after carrying their canoes a mile and a half over the prairie and through the marsh, they launched them on the Wisconsin, bade farewell to the waters that flowed to the St. Lawrence, and committed themselves to the current that was to hear them they knew not whither, — perhaps to the Gulf of Mexico, perhaps to the South Sea or the Gulf of California. They glided calmly down the tranquil stream by islands choked with trees and matted with entangling grape vines; by forests, groves and prairies, the parks and pleasure grounds of a prodigal nature; by thickets and marshes and broad, bare sand-bars ; under the shadowing trees, between whose tops looked down from afar the hold brow of some woody bluft.” * * Page 55 : “On the 17th of June, they saw on their right the broad meadows, hounded in the distance by rugged hills, where now stand the town and fort of Prairie du Chien. Before them a 735 wide and rapid current coursed athwart their way, by the foot of lofty heights wrapped thick in forests. They had found 2084 what they sought, and ‘with a joy,’ writes Marquette, ‘which I cannot express,’ they steered forth their canoes on the edies of the Mississippi. Turning southward, they paddled down the stream, through a solitude unrelieved by the faintest trace of man.” Page 58 : “Again they were on their way, slowly drifting down the great river. They passed the mouth of the Illinois, and glided beneath that line of rocks on the eastern side, cut into fantastic forms by the elements, and marked as ‘The Euined Castles’ on some of the early Franch maps.” Page 60: “They passed the lonely forest that covered the site of the destined City of St. Louis, and a few days later, saw on their left the mouth of the stream to which the Iroquois had given the well merited name of Ohio, or the Beautiful Kiver.” Page 62: “Early in the morning, they embarked again, and proceeded to a village of the Arkansas side, about eight leagues below.” Page 64: “They left the Arkansas Village, and began their homeward voyage on the 17th of July. It was no easy task to urge their way upward, in the heat of midsummer, against the current of the dark and gloomy stream, toiling all day under the parch- ing sun and sleeping at night in the exhalations of the un- wholesome shore, or in the narrow confines of their birchen* 2085 vessels, anchored on the river.” Page 65: “At length they reach the Illinois and entering its mouth, followed its course, charmed as they went, with its placid waters, its shady forests, and its rich planes, grazed by the bison and the deer. They stopped at a spot soon to be made famous in the annals of western discovery. This was a village . of the Illinois, then called Kaskaskia ; a name afterwards trans- ferred to another locality. A chief with a band of young war- riors offered to guide them to the Lake of the Illinois ; that is to say. Lake Michigan. Thither they repaired; and, coasting its shores, reached Green Bay at the end of September, after an absence of about four months, during which they had pad- died their canoes somewhat more than 3500 miles.” Page 66 : “Marquette spent the winter and the following summer at the mission of Green Bay still suffering from his malady, in 73G Extract, — Parkman’s LaSalle. — Continued. the Autumn, however, it abated; and he was permitted by his Superior to attempt the execution of a plan to which he was devotedly attached, — the founding, at the principal town of the Illinois, of a mission to be called the Immaculate Conception, a name which he had already given to the River Mississippi. He set out on this errand on the 25th of October, accompanied l)y two men, named Pierre and Jacques, one of whom had been with him on his great journey of discovery. A band of Pot- 2086 tawattamies and another band of Illinois also joined him. Tlie united parties — ten canoes in all — followed the east shore of Green Bay as far as the inlet then called Sturgeon Cove, from the head of which they crossed by a difficult portage through the forest to the shore of Lake Michigan. November had come. * * The shore was desolate and the lake wms stormy. They were more than a month in coasting its western border, when at length they reached the River Chicago, en- tered it and ascended about two leagues. Marquette’s disease had lately returned, and hemorrhage now ensued. He told his two companions that this journey would be his last. In the condition in which he was, it was impossible to go farther The two men built a log hut by the river, and here they pre- pared to spend the winter; while Marquette, feeble as he was, began the spiritual exercises of Saint Ignatius, and confessed his two companions twice a week.” * ‘‘Urged by a burning desire to lay, before he died, the foundation of his new mission of the Immaculate Conception, Marquette begged his two followers to join him in a novena, or nine days’ devotion to the Virgin. In consequence of this, as he believed, his disease relented; he began to regain strength, and in March was able to resume the journey. On 2087 the 30th of the month they left their hut, which had been in- undated by a sudden rise of the river and carried their canoe through mud and water over tlie portage which led to the Hesplaines. Marquette knew the way, for he had passed by this route on his return from the Mississippi. Amid the rains of opening spring, they floated down the swollen cur- rent of the Hesplaines, by naked woods and spongy saturated prairies, till they reached its junction with the main stream of the Illinois, which they descended to their destination, the Indian town which Marquette called Kaskaskia. Here, as we are told, he was received ‘like an angel from heaven.’ * * * It took place near the town on the great meadow which lies between the river and the modern Village of Utica.” 2088 Thereupon counsel for complainant offered in evidence the foot note in the work of Justice Breese, entitled as follows : “The Early History of Illinois, from its discovery by the French in 1673 until its cession to Great Britain in 1763, in- cluding the narrative of ^Marquette’s discovery of the ^lis- sissippi by Sidney Breese, late Justice of the Supreme Court of Illinois; with a biographical memoir by Melville W. Fuller, edited by Thomas Hoyne, LLD, Chicago, E. B. Meyers & Company, 1884 which foot note appears on page 96 of said book. After some colloquy between counsel, the court excluded such foot note, which foot note so excluded is as follows: 2093 ‘‘Now there are data stated and given in these accounts of the location which Marquette and bis two Frenchmen se- lected to build their cabin that memorable winter that en- abled us with reasonable certainty, if not to fix the precise spot of ground, yet to point to the near vicinity of its erec- tion. It is stated by Parkman, that Marquette moved two leagues from the mouth of the river. The river was frozen over, and it is not probable that they paddled the canoe up the stream two leagues or six miles. But as the mouth of the river was then at the foot of Madison street, they moved across the prairie to the south branch, and up along the branch to the vicinity of Mud Lake, about where it now comes in as a tribu- tary of the south branch, above McCormick’s present reaper factory. If we place the location between that and the bridge over the branch at Western avenue, we will have about the two leagues or six miles traveled over to get there from the foot of Madison street. This location was where in times of high water, canoes were carried through Mud Lake to the Desplaines Eiver, and so the portage was made down to the Illinois and Kankakee Eivers. Besides the accounts both Parkman and Shea agree that in the following spring, in the month of March, the ice break- ing up, the ground where the cabin stood was flooded, and the cabin was moved. The inmates suffered from the wet, etc. All the conditions agree in pointing out this as the location. The 12th of March, 1849, will be memorable in this city for a disaster connected with the rising of the same water that occurred in the breaking up of the ice that spring, which de- stroyed a large amount of shipping in the south branch of the river. The flood of water coming down from the junction of Mud Lake swelled the river and increased its current to a torrent. The distance of two leagues, or six miles, is a strong cir- cumstance, because taking a line across the prairie from the mouth of the river at Madison street or following up the thread of the stream, the distance would be counted about the same to Bridgeport, or a point beyond that, being the only route to effect the necessary portage, makes it very probable that it was the direction taken in leaving Lake Michigan.” See Parkman ’s Discovery of the Great West, pp. 67, 68, 79. 738 Extract, — Park man’s LaSalle. — Continued. Thereupon counsel for complainant continued reading from the book hy Parkman, entitled ‘‘LaSalle’s Discovery of the Great west,” page 449, as follows: 2094 “Early Unpublished Maps of the Mississippi and the Great Lakes. Most of the maps described below are to be found in the depot des Cartes del la Marine et des Colonies, at Paris. Taken together they exhibit the progress of Western Dis* covery and Illustrate the records of the explorers. The map of Galinee, 1670. The first attempt to map out 2095 the Great Lakes was that of Champlain, in 1632. This of Galinee may be called the second. * Three years or more after Galinee made the map men- tioned above another indicating greatly increased knowledge of the country was made by some person whose name does not appear. This map whicli is somewhat more than four feet long and about two feet and a lialf wide has no title. All the Great Lakes through their entire extent are laid out on it with considerable accuracy. Lake Ontario is called ‘Lake Ontario ou de Frontenac.’ Lake Michigan is ‘Lake Mitchiganong ou des Illinois.’ On Lake Michigan immedi- ately opposite the site of Chicago are written the words of which the following is a literal translation: ‘The largest vessels can come to this place from the outlet of Lake Erie where it discharges into Lake Frontenac (Ontario), and from this marsh into which they can enter there is only a distance of a thousand ]>aces to the river LaDivine (Desplaines) which can lead them to the river Colbert (Mississippi) and thence to the Gulf of Mexico.’ This map was evidently made after the voyage of LaSalle in which he discovered the Illinois or at least the Desplaines branch of it. * * ^ We come now to the map of Marquette which is a rude sketch of a portion of Lake Superior and Michigan, and Michigan, and of the route pursued by him up the Fox Eiver of Green Bay, down the Wisconsin and thence down the Mis- 1096 sissinpi as far as the Arkansaw. The Kiver Illinois is also laid down as it was by this course that he returned to Lake Michigan after his memorable voyage. He gives no name to the Wisconsin. The Mississippi is called the Eiviere de la Conception; the Missouri the Pekitanoui; the Ohio the Ona- bouskiaou, although LaSalle, its discoverer, had previously given it its nresent name borrowed from Illinois. The Illi- nois is nameless like the Wisconsin. * * * of far greater interest is the small map of Louis Joliet, made and presented to the Count Frontenanc after the discoverers returned from the Mississi]:>pi. It is entitled ‘Carte de la Decouverte du St. 739 Joliet on la Visit la Commiiiiicatioii du fleiire St. Jjaureiis avec les lacs Frontenac, Erie, Lac des Hurons et Illinois: Then succeeds the following written in the same anticiuated French as if it were a part of the title: ‘Lake Frontenac (Ontario) is separated hy a valley of half a league from Lake Erie, from which one enters that of the Huron, and by the same navigation into that of the Illinois (Michigan) from the head of which one crosses to the Divine River (Riviere Divine, 7. e., the Desplaines branch of the River Illinois) by a ])ortage of a thousand oaces. This river falls into the River Colbert (Mississip])i), which discharges itself into the Gulf of Mexico.’ ” 2097 Thereupon counsel for complainant read from “Narrative of the Expedition to the St. Peters River,” Alvord’s Exhibit 5, one of the passages on ])age 162, which was overlooked. “In the afternoon of the 5th of June (he fixes the year elsewhere as 1823) we reach Fort Dearborn (Chicago), hav- ing been engaged eight days in traveling a distance of 216 miles making an average of 27 miles per day. * * * At Fort Dearborn we stopped for a few days with a view to examine the country and make further ])i*eparations for the journey to the Mississippi. * * (Page 163.) Fort Dear- born is situated in the State of Illinois on the south hank and near to the mouth of Chicago River. The boundary line be- tween this State and that of Indiana strikes the western shore of Lake Michigan ten miles north of its southernmost ex- tremity and then continues the shore of the lake until it reaches the 42^ degree of north latitude, along which it extends to the Mississippi. The Post at Chicago was aban- doned a few months after the party visited it. * * * (Page 165.) The grain is frequently destroyed by swarms of in- sects. There are also a number of destructive birds of which it was impossible for the garrison to avoid the baneful influ- ence except by keeping, as was practiced at Fort Dearbo^*n, a party of soldiers constantly engaged in shooting at the crows and blackbirds that committed depredations upon the corn 2098 planted by them, but even with all these exertions the maize seldom has time to ripen owing to the shortness and cold-^ ness of the season. The provisions for the garrison were for the most part conveyed from Mackinaw in schooners and sometimes they were brought from St. Louis, a distance of 386 miles up the Illinois and Desplaines Rivers.” Professor Alcord further testified : as to the Volume marked Alvord Exhibit 15, entitled Narrative of an Expedifion through the Upper Mississippi to Itasca Lake, the actual source of this River, embracing an ex]d oratory trip through the St. Croix 740 Alvord, — Direct Exam. — Continued. and Biirntwood (or Brule) Elvers, in 1832, under the direction of Henry K. Schoolcraft. New York. Published by Harper & Brothers No. 82 Cliff Street, 1834. I am acquainted with the standing and character of Henry E. Schoolcraft. I have never used this book myself, but School- 2099 craft — the same Schoolcraft I spoke of yesterday. This book would be regarded by historians as authoritative for the expedition that was made at that time as described in that book. Thereupon counsel for complainant read from page 121: ‘‘The number of points at. which the waters of the Mis- sissippi Eiver communicate by interlocking rivers and port- ages and Lakes are the following, proceeding from south to north, namely: 1. By the Illinois and Chicago Creek (with Lake Michi- gan). 2. By the Wisconsin and Fox Elvers (with Green Bay). 3. By the Chippewa and Muskkee, or Mauvais Elvers, with Lake Superior. 4. By the St. Croix and Burntwood or Brule Elvers, do. 5. By the Savanne and St. Louis Elvers, do. The routes by the Illinois and by the Wisconsin were first laid open by French enterprise and have been used for canoes and flat bottomed boats in their natural state and without any practical improvement which as yet facilitates communi- cation about 160 years. They are so familiar in our geog- raphy and have been so much explored and are so well ap- preciated as permanent points for effecting canal and rail- road routes that it is only to be desired that early and effi- cient measures should be taken for opening them.’^ 2100 Professor Alvord further testified as to the book marked by the reporter “Alvord Exhibit 16,^’ entitled, “The History of Wisconsin in Three Parts, Historical, Documentary and Descriptive, compiled by direction of the Legislature of the State by William E. Smith, President of the State Histori- cal Society of Wisconsin, Part 1, Historical, Volume 1. Madi- son, "Wisconsin. Beriah Brown, printer, 1854.” I have used this book. It is regarded by historians as one of the best accounts of the history of Wisconsin. It is considered among historians as an accurate and relmble book on 'the matters with which it deals. Thereupon counsel for complainant read in evidence page 83 as follows : 2101 “At this period the three great avenues from the St. Law- 741 rence to the Mississippi were, one by way of the Fox and Wisconsin Eivers, one by way of Chicago, which had been safely pursued since the days of Marquette, and one by the Miami and the Lakes where, after crossing the portage of three leagues over the summit level, a shallow stream led into the Wabash and the Ohio.’^ Professor Alvord further testified : As to the book which the reporter marked for identification ‘^Alvord Exhibit 17,’’ and which is entitled upon the back ‘‘Mis- sissippi Basin, Winsor,” and on the title page “The Mississippi Basin,” and then in display two maps, one of 1697 and one of 1763, of the basin. “The Struggle in America between England and France, 1697-1763, with full cartographical illustrations from con- temporary sources. By Justin Winsor, Boston and New York, Houghton, Mifflin & Co., Kiverside Press, Cambridge, 1895.” 2102 I am well acquainted with the standing and character of that book. Mr. Winsor was for many years Librarian of Harvard University, and a professor at Harvard. He was at one time president of the American Historical Association and a mem- ber of many learned societies both of Europe and of this country. He has had broader and more intensive knowledge — he is re- garded by historians as having a wider and more intensive knowl- edge of Western history than any man who has ever written on the West, and is particularly esteemed for his knowledge on the historical geography of America. I have heard historians say that there was no man who knew the historical geography of America as well as Justin Winsor. It is the most authoritative and reliable book in that field upon the matters with which it deals. Thereupon counsel for complainant read from page 24, from the -chapter entitled “The Mississippi Basin at the end of the Seventeenth Century.” “Before the end of the Seventeenth Century the portages at the head of Lake Michigan had become the best known of all, and there had been a trading post for something like fifteen years at the Chicago Jliver, what Herman Moll, the English cartographer, called ‘The Land Carriage of Cheka- 2103 koe,’ as described by James Logan in a communication which he made in 1718 to the English Board of Trade as running from the Lake three leagues up the Eiver, then half a league 742 A Ivord, — Direct Exa m . — Coiitiniied. of carriage, then a mile of water, next a small carry, then two miles to the Illinois, and then 130 leagues to the Mississippi. But descriptions varied with the season. It was usually called a carriage of from four to nine miles according to the stage of water. In dry seasons it was even farther, while in wet times it might not have been more than a mile, but indeed when the intervening lands were Mrowned’ it was quite pos- sible to pass in a canoe amid the sedges from Lake Michigan to the Desplaines, and so to the Illinois and the Mississippi. It is along this route that the drainage canal of the City of Chicago is now constructing for the joint purpose of reliev- ing the city of its sewage and opening a passage for its com- merce with the interior.” Thereupon by request of counsel for defendant, counsel for complainant read in evidence the following additional passage from Winsor, p. 24 : 2104 There are other portages south of the Chicago Elver and at the southwest corner of the lake by the lesser and greater Calumet Eivers by which the Kankakee and Desplaines branches of the Illinois were sometimes reached. It is not always easy in the early narratives to determine which of 2105 these portages about Chicago was in particular instances used, and in the maps there is some confusion in the Che- kogoua and Calumet Eiver. ” Professor Alvord further testified: (Witness being handed documents) That is the manuscript of the journal of a voyage by Hugh He ward to Illinois, made in the year 1780. The manuscript belongs to Mr. C. M. Burton of De- troit, and was sent by him by express to me in care of the Chicago Historical Society last month. I talked with him over the ’phone, last night after the adjournment of court. This is the same manuscript to which I referred yesterday. I examined this manu- script first last summer, about August 1st, or a year ago 2106 last summer, about August 1st, 1907. I had seen the manu- script before that. I was visiting Mr. Burton in his own house and worked in his library for half a week looking over all of his manuscripts. He is a collector of historical manuscripts and has one of the best collections of Americana west of the Alle- ghenies. I am very familiar with the documents of Americana of this class. From my knowledge of manuscripts coming from this same period, I should judge that this was written at the time that it 743 purports to be written, and from my knowledge of the writing of Hugh Howard I should judge that this was actually written by Hugh Howard himself. I am acquainted with his writing from other documents, legal documents that have been authenticated by our court. 2108 As far as I know there are but two men that have ex- amined this document. I read it over with Mr. C. M. Bur- ton, the owner of the document, and we found it very interesting, and I intend to publish it at some time in Illinois transactions — historical transactions. I regard it as a reliable document. This document belonged to the John Askin papers. Askin was a trader at Detroit, and his papers have all been acquired by Mr. C. W. Burton, and among those papers was this document. Mr. He- ward was associated for years with Mr. Askin in the fur 2109 trading industry. Mr. Askin went to Detroit about the year 1776 or 1777. I -know of Mr. Howard’s association with Mr. Askin as early as 1787. That is the historical knowledge. Thereupon counsel for complainant offered in evidence pas- sages from that document giving the entries under date of Sun- day, May 9, 1790, Monday, May 10, 1790, Tuesday, May 11, 1790, Wednesday, May 12, 1790, Thursday, May 13, 1790, Friday, May 14, 1790, and Saturday, May 15, 1790. C ross-Exam ii lafio n. I am familiar with Mr. Howard’s writing. Mr. Howard was down in Cahokia in 1787 and entered in a court book the power of attorney that had been granted to him. 2110 The clerk was a Frenchman and, being unfamiliar with . English, permission was given to Mr. Howard to write in the clerk’s book this power of attorney himself, and it is there stated by the clerk that it is in Mr. Howard’s handwriting. The Court. You can get that much more simple. The only 2111 reason you have, so far as you call that knowledge that this is his handwriting is because in your judgment it is identi- cal with that which you saw in those records that you have just talked about. A. Yes, sir. I have examined other papers in Mr. Burton’s collection. 744 . Alvord, — Cross-Exam. — Continued. Q. Aside from what knowledge you have got of Mr. Howard at Cahokia, have you any outside of what you got from the col- lection in Detroit ? A. No. Q. Who he was or what he was, except as it appears in this letter you do not know? A. No. Q. As to his veracity, have you any knowledge whatever? A. No. Counsel for Complainant. I submit that this is not proper cross-examination. 2112 Counsel for Defendant. If the witness, Mr. Heward, were on the stand, we would have a right to know whether he was veracious. I cannot see that because he wrote it down and died a hundred years ago that we are any more at the mercy of his statement — The Court. You can, of course, find out all you can about Mr. Heward. The Court. All you know is what you have said — is that 2113 all you know about Heward, what you have said now in this examination or do you know anything more about He- ward? A. I have not refreshed my memory on the life of Hugh Heward very recently. I collected several things at the time that I was working over the Cahokia record in regard to Heward. I am particularly interested in those Detroit traders, but I sup- pose that I have stated practically everything that I know about Heward. Q. Volumes of discussions are to be found as to the accuracy of statements even of travelers whose works have become historic; isn’t that true? Yes. 1214 Witness. Joliet and Marquette do not contradict each other emphatically as to certain topographical matters. I do not remember any material contradiction in regard to topography between Marquette and LaSalle, even as to the Desplaines Eiver; I don’t remember any. Q. You do not remember that he takes up Marquette’s state- ment and emphatically contradicts it? A. I do not remember an emphatic contradiction. The Court. That is a journal one hundred years or more old 745 which bears no particularly discrediting marks on it, I assume^, — that has not been pointed out — internally or externally — and 2115 it may- go in evidence for what it is worth. It is a quesetion of weight. Thereupon counsel for complainant read in evidence the manu- script as follows: ‘^Sunday, May 9, 1790. Wind at southwest inclining from land. Loaded and set off. Of course in a bend nearly north- west. Strong wind from south southwest,^ but we recover a little, it being otf the land. Arrived at ’Grand Calmanuck and afterwards at Little Calmanuck; the course norwest. From there arrived by a north course under sail at Chicago, under reefed sail, the wind blowing strong and in blasts. Missed the entrance of the river and were obliged to go al)out a mile past to land. Monday, May 10, 1790. Slept at Point Sables with the Cannots, and began to hull corn and bake bread and arrange everything for next morning. Left the Cannots at Point Sables and took his fur robe. Bought of him forty-one lbs. hour, baked in bread for 25 and 29 lbs. pork at 2/8'' — the form of the ordinary English two shillings, eight pence, two-eight, with a line between — Ghe whole amounting to £5-10-8’ — the form of the English, five pounds, ten shillings and eight pence — and paid him with 13 yards 4/4 cotton. 2116 Tuesday, May 11, 1790. Engaged five Indians to help us over the carrying place with pirogue and paid them with two handfuls of powder. Duarrier this morning very saucy and abuseful about getting salt. 1 promised to requite him for it. A showery day and wind at west. Carrying place about one half mile. Got over nearly at midday. Prom thence passed in the run and small lake to the river DePlain, and course turning nearly southwest. A very wet afternoon and heavy thunder. Arrived at the Eiver DePlain, said to be 15 miles, and encamped. Wednesday, May 12, 1790. Set off from the Eiver DePlain which runs from the north. Our course down the Illinois .Eiver southwest past Lacroix and after Les Arbre” — blank, ‘^and a pass that goes in a small lake to the southeast and by this pass it is said to be three leagues to Little Calmanuck on the lake. This about eleven o’clock. Passed the Petit and Grand Tosil and afterwards the long rapids and came to the Village of Mount Juilliette, course southwest. High hill at west resembling Fort Larnoult at Detroit. Passed afterwards the lake following. Here Maurice informed me not to be surprised, that there was so much danger he would not return with me. Lomro said he was to make the voyage with him, and if he did not return, he would not. II 0 ward ’s J oiini al. — Continued. 74() 2117 Thursday, May 13, 1790. Finding the goods not dry enough, and very warm weather coming on, remained to dry them better in the afternoon. Threatened rain. AVe were obliged to take them in. Friday, Alay 14, 1790. Remained and finished drying the goods and packed up. Belhumour, a Frenchman settled among the Indians, stopped to pass the village at the forks with us. Cool night and heavy thunderstorm. Saturday, May 15, 1790. Loaded and set otf. Passed the village at the forks. The chief and village in feast and good humor. Gave him little tobacco and powder and he said he should he ready to assist me. Bought five sacks of corn for four shirts, and powder, and paid Belhumour with powder. He was contented but begged two white shirts on credit till my return, which I gave him. He lent me his dog and a tea kettle, and gave me nine eggs and a leg of venison. Passed the entrance of the river Theakekie about midllay and from here arrived at the rapid of Demi Charge or rapid of Neingr.” Thereupon counsel for complainant explained that this cor- responds closely with the present rapids of Marsailles. AA%ether the French word Marsailles got attached as early as that we do not know, — and then continued reading as follows : 2118 ^‘Sunday, Alay 16, 1790. And a fine bottom Imlf mile. 2119 Set off and passed isle of rocks, called the Charbonnier. ” ’ A Ivo rd Cross-Exa m i n a ti on . As to whether it is signed, — it is simply noted on the paper as being the journal of Hugh Howard. Q. Is it signed anywhere! A. Not to my knowledge, no. 2120 It is labeled: — ‘Mournal of A^oyage made by Air. Hugh Howard to the Illinois country.” I should say it was not his handwriting. Q. And you know of no other signature u])on the document anywhere! A. No, it was sewed together by the collector. AAGien I read it, I took the sewing out; it had just been rather roughly sewed, and gave Air. Cressy leave to take the sewing out. (^. Sewed together by the collector! A. Yes, by the cob lector. Q. Not by the author! A. No, sir. 747 2121 No. This diary does not show liis return to Detroit. T think it leaves himldown at Cahokia, or on his way to Ca- liokia. And on being asked: ‘^Did you ever see any furtlier writing or diary of his after the date when this terminates,” replied, ”No.” Counsel for Complainant. The record may show that the manuscript is concluded with and we ask the consent of the court to return it immediately. The Court. Very well. Counsel for Defendant. Did the stenographer get what was read there hy Mr. Starr from that manuscript accurately? Counsel for Complainant. We have here the Historical So- ciety’s copy. I want the record to show, that I read from the 2122 transcript which we have made, and that Mr.^Eeeves fol- lowed and compared on the copy of the Chicago Historical Society, making corrections as to spelling, and so forth, as we went along, and that Mr. Cressy for comulainant and Mr. Mun- roe for defendant together followed on the original manuscript as the reading occurred. Professor Alvord further testified: . Direct Examiuatiou. As to the volume which the reporter marked ” Alvord Exhibit 18,” and which is entitled, ”The American Nation; a History; Vol. 2. Basis of American History, 1500-1900, hy Livingston Farrand, A.M. M. D., Professor of Anthropology, Columbia Uni- versity, with maps. New York and London; Harper & Brothers, Publishers; 1904,” and a preceding title page, for the series, which reads as follows: ”The American Nation; a History from original sources by Associated Scholars, edited by Albert Bush- nell Hart, LL. D., Professor of History in Harvard University, advised by various historical societies; in 28 volumes; Vol. 2.” — I am very well acquainted with this series by Professor Hart, 2123 called the ” American Nation.” I am very well acquainted with the work of Professor Farrand, who wrote the second volume in this series. Historians regard the set of works known as ” Hart’s American Nation” as the best and most authoritative history of the United 748 Alvord, — Direct Exam. — Continued. States that has so far been written and of these excellent volumes the second volume is regarded by historians as one of the best. Thereupon counsel for complainant read in evidence pages 26 and 27 of said Volume II, as follows: ^‘From the Great Lakes to the Mississippi Basin there was a choice of paths. In the Northwest the French often crossed from the head of Lake Superior to the upper Mississippi by way of the St. Louis River. The most important portage, however, was probably that which led from the Fox to the Wisconsin River, first used in 1673 by Joliet and Marquette, and later the site of Fort Winnebago. At the southern end of Lake Michigan an important trail led from the Chicago to the Desplaines, and so to the Illinois, on the same line as the 2124 present Chicago drainage canal. The portage was from from four to nine miles in length, according to the season. Other carrying places of the region were from the Calumet to the Desplaines and from the St. Joseph to the Kankakee. But that from the St. Joseph to the Wabash was the principal channel of supplies for early settlers at Vincennes.’’ And thereupon counsel for complainant offered and read in evidence the depositions of Robert E. Orr. For rulings on same see Abstract of Depositions {supra, p. 326 and p. 380). 2125 Thereupon counsel for complainant at request of counsel for defendant read the following additional pages from ‘L41- vord’s Exhibit 18,” to-wit, pages 23 and 24, as follows: ‘^The two most important factors in the exploration and settlement of a country are the waterways and the mountain systems, the one an assistance to travel,, the other an ob- stacle. In the sheltered bays, inlets and rivers of the Atlantic coast of North America the early European settlements were mostly placed. But some locations were chosen well inland by the larger rivers and often near the head of navigation for seagoing vessels. For example, Quebec and Montreal on the Saint Lawrence where the lower shores were forbidding and the settlements on the James and the Delaware where fear of attack by sea determined the sites. From these points as bases the early exploration and settlement of the country extended, and the consequence of the rivers and streams at once became evident. The dense forests, where the only road 2126 was the narrow Indian trail, were not passable except on foot. Even pack animals could be used with difficulty. The streams, however, offered a ready means of transport, and the light birch bark canoe which could be shouldered over the necessary portages made it possible for the early voyageurs 749 to penetrate far into the heart of the continent carrying their merchandise for barter and returning with their bales of fur. Rivers traveling on east and west lines involved crossings from one stream to another. Hence a point of great inter- est to the pioneer was the portage. * * * The place and convenience of these portages were well known to the Indian, and the European as a rule merely followed the trail of the savage. * * * Their importancec in the early occupation of the country is' attested by the fact that forts were imme- diately established on most of the main portages and in the French and Indian wars such places as Crown Point, Schenec- tady and Presque Isles indicated lines of attack and defense. Since these routes followed the lowest and easiest ways over the water sheds between the river valleys, wagon roads and railways were eventually built along the same lines which thus exerted a marked influence, both on the early movements of population and the more recent development of commer- cial centers.’’ 2127 Robert E. Orr, a witness on behalf of the complainant, testified as follows : Direct Examination. My name is Robert E. Orr. I have given testimony by way of a deposition in this case. In that deposition I was asked to pro- duce a tracing, a blue-print, of Section No. 25 in Township No. 34 North of Range No. 8 East of the Third Principal Meridian in Grundy County, Illinois, and said I would. The tracing now handed me, marked ^^Orr Exhibit No. 7,” is the tracing that I said I would furnish. It is a true and correct copy of the record on file in the office of the Commissioners of the Illinois and Michi- gan Canal. The blue print now handed me is a blue print copy of the ex- hibit just identified. 2128 This heav}^ black shading here (indicating) represents a part of the hillside, the contour oT the hillside north of the canal. Thereupon the said tracing was admitted in evidence (Atlas, 3927; Trans., p. 6523; Abst., p. 1920). Thereupon it was agreed by the respective counsel that the blue print of the tracing marked ^‘Orr Exhibit 7-A” might be used instead of the tracing. 750 -129 Clarence ACal worth Alvord, testified on cross-examination as follows : I have made a specialty of the history of Illinois. And in con- nection with that I have looked up the sources of authorities with reference to the Desplaines and Illinois Eivers. Q. State whether you know of any other works which relate to or discuss or refer to the Desplaines Elver other than those that have been mentioned on your direct examination. 2131 A. I know of a passage in one book that refers to the Des- plaines Eiver. But it was not what I regarded as an au- thoritative statement. It was where LaSalle was said to have used the Chicago passage. In CTiarlevoix’ History of the New Francais it is possible that there is a passage about the Desplaines Eiver. I looked into the index and failed to find it, and as my time was limited I did not go through the volume. In Charlevoix’ History of the New France; the work is 2132 a very large one, and I did not have time to go through it. In Bafon’s letters from Louisiana — I do not give the French name or translation — it is possible that there may be a reference, but I should hardly think so as that deals with Lower Louisiana. In Dupraiz, for the same reason, it is not likely that there would be any passage. So, to my best knowledge and belief, practically every contemporary reference to the Desplaines Elver that was written before 1818, that was relevant to the question at issue, was to be found in the Chicago Public Library and the Chicago Historical Library has been introduced. 2133 I limited my personal investigation of this case to the years 1673 to 1818, with regard to the contemporary ac- counts previous to 1818, but not with regard to other books. In a few cases I went beyond 1818 and testified as to the authority of works published since, after that time, and narrating events occurring since that time, — such as Pecks’ Gazetteer of Illinois in 1837; Ogden’s letters, which fall quite approximately at 2134 that time, and Schoolcraft, — the trip of Schoolcraft. Imlay’s original volume was published in 1792; Long’s Fx])edition to the Mississippi was in 1818. 2185 I looked Charlevoix up al)out last Friday, witli reference to my testimony liere. I am familiar with Charlevoix’ His- tory of New France, hut in my working up tlie Desplaines Fiver history, I did not run across that passage with regard to the Des- plaines River, I have read the letters of Charlevoix. 1 have no recollection of any mention of the Desjdaines. As to any reference to LaSalle in connection with the Des- jdaines river, I did not look him up because I am thoroughly familiar with LaSalle’s movements and the only time that he used the Chicago passage, or portage, if he used it at all, was in 1617, and the testimony is of the witness who says that he did it, and it is not very good. 2136 Being asked, ^‘Do you not know that LaSalle himself wrote a letter in which he described the Chicago jmrtage and the Desplaines River, and its connection with the Illinois River,” the witness replied, do not recollect that letter.” My work with LaSalle was done about a year ago. Q. Do you know that Windsor, in his narratives and critical history, states that LaSalle did use the Chicago ])ortage, and re- fers to this letter? A. I would not be surprised that AVindsor made that statement. Q. And you have already testified that AVindsor is as high an authority as exists upon that subject, have you not? A. Yes, sir. In i)i*eparing for this case I made no use of that letter of 2137 LaSalle’s because I did not know of it. I do not recollect that LaSalle wrote twm letters in which he refers to the Des- plaines River and the Chicago portage and gave his opinion of them. And as to Charlevoix I could not find a reference. I should consider LaSalle’s testimony as very good, excellent. La- Salle was a cultured man, with a good power of observation, but extremely prejudiced against the Jesuits, so much so that he would be likely to disparage anything that the Jesuits had done. 2138 There is a possible element in determining the value of LaSalle’s testimony, — do not misunderstand me. LaSalle is, for matters of fact, as good an authority as the Jesuits. The Jesuits would always disparage LaSalle’s explorations and La- 752 Alvo rd, — C ross-Exam. — C ontinued, Salle, the Jesuits. LaSalle started out from Montreal with two Eecollect Friars. They left him among the Senecas. He is then said to have gone along the Ohio Eiver, but he was accompanied by Indians and some white men, but no men of learning as I re- member, aright. Both the Friars left him; both went up and went around De- troit. Then he passed from there — the testimony is very doubt- ful — to Chicafifo in 1671, and it is said by his friend that he 2139 went down the Illinois, his friend trying to make out that he discovered the Mississippi before Marquette and Joliet. The name of that friend is not known. It was a book that was written upon information obtained in conversation with LaSalle and the friend had never been in America and his directions and his latitude and longitude are so doubtful that it is very diffi- cult to determine where LaSalle actually did go. AVhen Father Hennepin was with LaSalle, he came down the St. Joseph and the Kankakee. Father Hennepin was not with him at Chicago. This word Chicago” was applied to the Calumet Eiver 2140 and to the Desplaines Eiver. I do not recollect ever seeing on a map or in a narrative the name ^‘Chicago” given to the St. Joseph Eiver. The St. Joseph Eiver is directly opposite us at St. Joseph, Michigan, and that is the other portage that was mentioned, coming by the way of the St. Joseph and down by the Kankakee and around, and that is the way that I under- 2141 stand it was, LaSalle’s favorite route. That was his favor- ite route. I have read Moses’ work on Chicago. And on being asked, ‘AVhat authority has that,” replied, ^Aloses was not a trained historian.” Q. IVas Imlay? A. No, Imlay was giving his experiences in letters. Moses is an authority, Imlay is a source. I do not consider the mere fact that a man imblishes a book and calls it a history as giving him any right or standing to have his statements accepted as historical or authentic. If I find that a man had published a history of a country, I go back to his au- thority and see what use he made of his sources. Q. And if you find a statement in such a ' history, and found another statement of that fact anywhere, would 2142 you give any weight to that statement as establishing any historical fact? A. It would depend largely upon the char- acter of the statement. Frequently historians whose word is not of very great value, have had access to information that is no longer extant, or is not contained in every history. We should have to examine the statement in question and determine its value by it- self. Q. If you found no other reference to the statement anywhere, nothing that you could check it by or gauge it by, would you ac- cept it as a historical fact, because the man said it, and particu- larly if it was a fact which could not have come within his per- sonal knowledge? Counsel for Complainant. I submit that this is the same ques- tion, just asked and just answered. Counsel for Defendant. This is cross-examination. Counsel for Complainant. No, this is cross of cross. It is repetition, of course. The Court. He may answer it. A. That statement would have to be taken with a great deal of doubt. Counsel for Defendant. Q. The mere fact tliat you found it in a book of that character, written by a man of that descrip- tion, would not to you indicate that it was a historical fact? 2143 A. It would have to be of a very peculiar character before we would accept it. I have not mentioned all the authorities upon this subject that I am familiar with. There is John Beynolds, Fogg, Struve, John Moses. Keynolds may be accepted for facts to come directly within his knowledge, and I would say, with reference to him, that he would not be prejudiced. Reynolds is a very doubtful au- thority. Moses is not what we called a trained historian, but I regard him — I suppose you want my personal opinion? — re- 754 Alvord, — Cross-Exam. — Continued. gard John Moses as having done a very good piece of work. A great deal of it will have to be done over again. Q. Is that not so of nearly all of the early historians? 2144 A. I should not class him like Windsor. I would class him higher than AVoodruff, down in Will County. Hurlburt is a popular historian. Hurlburt has somewhat the characteristics of Ida Tarbell. Hurlburt writes for sales, and he writes very hurriedly and not very critically. I have followed in one or two cases and on the whole I think it is a very good popular history. You have to be careful how you read Hurlburt. 2145 Monet comes pretty near being a source in many ways. He had access to information that has been in many cases lost since, and for that period Monet is a very good historian, for the period of which he wrote. I would not put Monet in a class like AYindsor, or Hart, the American Nation, but I should classify him with Moses. Brown is like Moses. As to my ever hearing the name Chicago applied by the early French to the Ohio River, I was rather interested. I have 2146 never seen it myself and I was surprised, because from the very earliest times the French called the Ohio and the AVabash one river, and called it the AYabash, and the river from the Ohio — what we call the Ohio, above the AVabash was called Belle River, Beautiful River. The English from the first called it by the Indian name, Ohio, and finally that name, of course, be- came attached to it. And on being asked : Q. AVould it surprise you to find the term, Chicago used in early documents, or at least documents re]Dorted by so excellent an authority as AYindsor in his Narrative and Critical History of America ? The witness replied should not be surprised.” 2147 Up to the first explorers of the names used, a very few stayed, but after the map makers began to work, such as DeLisle, who worked in the early part of the Eighteenth Century, the names became attached, and about 1775 the names were pretty fimily attached to the rivers. The English used names which stayed longer, but after AlitchelFs map, which was published in 1754, the names were very firmly attached. 755 The map that I spoke of, Marquette, was the original map made by Marquette on his travels. Joliet was the one that lost his map. Joliet’s map was made from memory afterwards. The Chicago Kiver I found at times applied to the Des- 2148 plaines River. I also find it applied to the Calumet River. There was a portage from the Calumet River to the Kan- kakee. There was a way of getting from Calumet to Kankakee, or it might go from Calumet to Desplaines. As I understand it they did both. Q. In connection with the answer as to the history of Wis- consin by Smith, you said it was accepted as an authority with qualifications, and you used that same term with reference to other works. What are the qualifications as applied to Smith’s work? A. I would class Smith’s work in the same class as Moses. You would have to use Smith with a great deal of care, and only use him as an authority in so far as his statements were backed up by other authorities. Q. Can you name any one of the local historians who have been referred to in your direct examination to-day, to whom that statement you have just made would not truthfully apply? 2149 A. I do not know as I want to blanket them all that way. Q. Try to think of one of those you have named. A. Local historians? Q. Yes. A. I am willing to say this — Q. You are willing to say that? A. Yes, sir. Q. What do you mean when you say that the statements of a man like Imlay are authority? A. Imlay was a traveler in the west. He was an observer, as was indicated by his letters. He had the means of making inquiries. Some things, of course, he saw himself, and because of the number of books and manu- scripts that have come down from that time to this, we have to use Imlay as one of our sources of information. If, for instance, Imlay says there is a river here, or a range of hills there, I should be inclined to take it, yes, sir; unless 2150 there was something to disprove it. I should question him in certain particulars, because he is a source and we his- torians are obliged to investigate our sources carefully. 756 A Iv 0 rd, — C ross-Exam. — C on tin ued. As to a description of the physical objects generally in works of travelers, as to the nature and condition of those ph 5 ^sical ob- jects, — a river changes, of course, and we would have to take that into consideration, so that if there was a long period between the time the traveler visited the river and the trained observer, the traveler’s opinion would have to carry a great deal of weight: if they were substantially contemporaneous I would take the trained observer. Q. You would consider the fact that some traveler narrates that he was told by somebody else that something existed, 2151 which he had never seen, would you consider that as estab- lishing the facts? A. What is the question. Q. Just please read the question. (Question read by the reporter.) Counsel for Complainant. I object to that because it is going into a question of evidence and not a question of his qualifica- tions as an expert upon historical works. Counsel for Defendant. I think it goes to his qualifications as an expert. The Court. He may answer it. Counsel for Defendant. Have you got the question? Please read the question. (Question again read by the reporter.) A. It largely depends upon the character of the facts. Counsel for Defendant. For instance. A. If the traveler were told by a trader who had made use of a certain portage, that there was a portage at such and such a place, I should say that that testimony could be admitted by the historian. If I found in a work purporting to give routes of travel, a statement made that a certain distance was fifteen miles, 2152 when as a matter of fact it was fifty, I should want to know to what miles he was referring, whether the European or the American. Assuming that he is writing in America for Ameri- cans, a book published in America, I should want to know when it was published, because he may have gotten his information from some Frenchmen, and they would speak of leagues instead of miles. Q. When you read an Fnglish book and it says miles, is there any doubt in your mind as to what it means? A. I think you are right. Q. What would be your qualification as to the statement or the weight attached to the statements of that writer? A. I should say that the writer had not himself measured the distance and had gotten his information from some other people. 2163 Q. And if you found a statement of that nature, would it not make you scrutinize with considerable care any other statements that he made of that kind? (To which question counsel for complainant objected on the ground that the question did not test the witnesses’ gen- eral historical knowledge at all, and that while the author of a book might have a splendid report of the laying out of travel routes, he might get his mileage, — as a witness in fact has said, — from some one else as to distances and be utterly worthless as to exact distances, and that the said question was therefore not proper cross-examination.) (All of which objections were overruled by the court and the witness answered as follows:) ‘ ^ It certainly would. ’ ’ 2157 And on being asked: ‘‘If you found that in the very next instance he gives ten and a quarter miles as a dis- tance, when in fact it was four miles, would that not rather tend to increase your caution as to accepting his statements as au- thority, ’ ’ replied in the affirmative. Shea is an authority, without reference to any particular book that he wrote. His works are generally regarded as authority? He has a very good reputation. 2159 As to certain geographical names, pages 56 and 59 of Shea, — I am not an authority upon all the physical features of this river or the Illinois Elver, and as to Syag Island, I am not familiar with it. As to the point referred to in St. 2160 Cosme’s Voyage at page 56, Mount Jolly, — that is a mound that lies on the Desplaines Eiver — near the mouth of the 758 Alvord, — Cross-Exam. — Continued. Desplaines Eiver; but as to where it is with relation to Joliet, I am not familiar with the situation of Joliet. I never have studied that country on the ground. In passing on the railroad I have never had pointed out to me what is sometimes called Mount Jolly. (Thereupon, upon objection of counsel for complainant to the question, Where is Syag Island,’^ upon the ground that it was geography and not history, the court sustained the objection after some colloquy.) 2163 Counsel for Defendant. Now, do you know what any of the geographical names in St. Cosme’s Voyage, the Indian names, what they designate in English, except the Indian name of the Kankakee Eiver? 2164 A. I have read the whole of this narrative and if you will notice in the foot-notes these Indian names are identi- fied by Mr. Shea and I used the foot-notes of Mr. Shea. Q. Just read the question. (Question read by the reporter). A. From my own knowledge, you mean? Q. Yes, sir. A. Some of them I remember and some I do not remember. There are two magazines of American History. One ceased to appear some years ago, and there is a new magazine of American history that has been started up within the last few years. The earlier one is a fairly good magazine. It had some very good writers. The value of Monsieur de Montaigny’s letter as a source would have the same value as St. Cosme’s Journeys. Charlevioux’ Letters are an excellent authority, because Charlevioux made the journey and he was a very keen ob- server. 2165 I do not think I ever have examined Post and Poul’s Ee- port. I have seen references from it. I never used it. I have read Caton’s Stage ^Eoute. As to what authority I attach to Caton’s work, — I do not know as I should care to take that upon myself without more close examination than I have given it, because I only used it in a casual way. I do not think I 759 would want to pass judgment on it. My first acquaintance with tlie history of Will County was in connection with this case. Re-direct Examination, In a work such as Dana’s ^‘Bounty Lands and Description of the -Principal Eoads and Eoutes by Land and Water,” where it appears as a preface to the routes and distances given that the author had used this language : 2166 ^Mn this department of science it is impossible in a new country, where actual surveys of courses and distances have not been had, to attain a precise accuracy, and though the author, although he flatters himself that he has embraced more new routes and noted the distances of old ones with more correctness than any man who has attempted the pub- lication, he is sensible that in our multifarious and complicated conditions where exact information is unattainable, the dis- tances between places in several remote and less frequented portions of the country have not been estimated with the strictest accuracy. Here and in all other matters pertaining to the subjects as his endeavors and most arduous and per- severing labor have been bestowed from a candid and en- lightened public, he solicits both the indulgence and the notice of his errors which he proposes to rectify in a future edi- tion. ’ ’ If routes, in which are mentioned distances from point to point, contain that kind of a prefatory statement, whether or not that would lessen in my mind as a historian the measure of accuracy as to the fact of the routes, and the routes themselves, and like- wise the inaccuracy of the statement of the historian, — I 2167 should think the witness had attempted to be honest, but in this case there are certain inaccuracies in distance with re- gard to the route. At the time this book was written, in 1819, the route through the lakes and over the portage here at Chicago to the Desplaines Eiver and down the Desplaines Eiver was one of the routes in that remote part of the country where surveys were not actually made and distances hard to obtain, as mentioned in the preface, or the prefatory part of this volume. 760 Alvord Re-cross Examination. Joliet and Marquette and Montaigny had given those dis- 2168 tances accurately. This man probably did not know their 2169 works. In the year 1818, just about that time, this part of the river was not well known, but I should say that on the whole the distances could have been obtained at that time. And thereupon after some colloquy between counsel in refer- ence to the statement in Dana’s ^‘Bounty Lands” being correct in fact, the witness was excused. 2175 Thereupon counsel for complainant read in evidence the Treaty of Greenville, communicated to the Senate Decem- ber 9, 1795, from the publication known as ^L\merican State Paj^ers; Volume 1, Class 3; Indian Affairs.” Title page: ‘L\mericnn State Papers; Documents, Legisla- tive and Executive of the Congress of the United States, from the first session of the First to the Third Session of the Thirteenth Congress, inclusive, commencing March 3, 1789, and ending March 3, 1815; selected and edited under the authority of Congress hy AValter Lowrie, Secretary of the Senate, and Matthew St. Clair Clarke, Clerk of the House of Kepresentatives.” ‘‘Fourth Congress Number 67, Treaty of Greenville, corn- 2176 municated to the Senate December 9, 1795. Gentlemen of the Senate: I lay before you for your consideration a treaty of peace which has been negotiated by General MAyne on be- half of the United States with all the late hostile tribes of Indians northwest of the Elver Ohio, together with the in- structions which were given to General M^ayne and the pro- ceedings at the place of treaty. United States, December 9, 1795. George Washington. A treaty of peace between the United States of America and the tribes of Indians called the Wyandots, Delawares, Shawanese, Ottawas, Chippewas, Pattawatamies, Miamies, Fel Kivers, Weas, Kickapoos, Piankeshaws and Kaskaskias. To put an end to a destructive war, to settle all controver- sies and to restore harmony and friendly intercourse be- tween the said United States and Indian tribes, Anthony Wayne, Major General commanding the army of the United States and sole commissioner for the good purposes above mentioned, and the said tribes of Indians by their sachems, chiefs and warriors, met together at Greenville, the head- quarters of the said army, being agreed on the following ar- ticle; which when ratified by the President with the advice and coinsent of tlie Senate of the United States shall be binding on them and the said Indian tribes — 2177 Article 1. Henceforth all hostilities shall cease; peace is hereby established and shall be perpetual; and friendly intercourse shall take place between the said United States and Indian tribes. * Article 3. The general boundary line between the lands of the United States and the lands of the said Indian tribes shall begin at the mouth of the Cuyahoga River and run thence, up the same. * * 2178 And in consideration of the peace now established, of the goods formerly received from the United States and of those now to be delivered, and of the yearly delivery of goods now stipulated to be made hereafter, and to indemnify the United States for the injuries and expenses they have sustained dur- ing the war,. the said Indian tribes do hereby cede and relim (iuish forever all their claims to the lands lying easterly and southwardly of the general boundary line now described. * * * And of the same consideration and as an evidence of the return of friendship of the said Indian tribes, of their con- fidence in the United States and desire to provide for their accommodation and for that convenient intercourse which will be beneficial to both parties, the said Indian tribes do also cede to the United States the following pieces of land, to wit: ^ * II. One piece of land six miles square at the mouth of Chicago River emptying into the southwest end of Lake Mich- igan, where a fort formerly stood. 2179 15. One piece of land twelve miles square at or near the mouth of the Illinois River emptying into the Mississippi. One piece six miles square at the old Peoria s fort and vil- lage near the south end of the Illinois Lake on said Illinois River. * ^ * And the said Indian Tribes will allow to the people of the United States a free passage by land and water as one and the other shall be found convenient, through their country along the chain of posts hereinbefore mentioned; that is to say from the commencement of the portage aforesaid at or ■near Loromie’s store; thence along said portage to the Saint Marys-, and down the same to Fort Wayne, and then down the Miami to Lake Erie; again, from the commencement of the portage at or near Loromie^s store along the portage: from thence to the river Auglaize, and down the same to its junction with the Miami at Fort Defiance; again from the commencement of the portage aforesaid to Sandusky River and down the same to Sandusky Bay and Lake Erie, and from Sandusky to the post which shall be taken at or near the foot of the rapids of the Miami of the Lake, and from thence to Detroit. 762 A I V 0 i'd, — R e-cross Exam . — C on tinned. Again from the mouth of Chicago to the commencement 2180 of the portage between that river and the Illinois and down the Illinois Eiver to the Mississippi. Also from Fort Wayne along the portage aforesaid which leads to the Wabash and then down the Wabash to the Ohio. * * * In testimony whereof the said Anthony Wayne and the sachems and war chiefs of the before mentioned nations and tribes of Indians have hereunto set their hands and affixed their seals. Done at Greenville in the Territory of the United States northwest of the Eiver Ohio in the 3rd day of August one thousand seven hundred and ninety five. Anthony Wayne. Signed by certain chiefs of tribes enumerated in the title.’’ Counsel for complainant also read in evidence the Treaty of Peace, Friendship and Limits of August 24, 1816, found in the vol- ume ordinarily cited as United States Statutes at Large, Volume 7, Indian Treaties, as follows: Pages 146-147 : Treaty of Peace, Friendship and Limits made and concluded between Ninian Edwards, William Clark, August Clark, August Chouteau, Commissioners plenipotentiary of the United States of America, on the part and behalf of the 2181 said states of the one part, and the chiefs and warriors of the United Tribes of Ottawas, Chippawas and Pottowotomees, residing on the Illinois and Melwakee Elvers and their waters and on the southwestern parts of Lake Michigan, on the other part. Whereas a serious dispute has for some time past existed between the contracting parties relative to the right to a part of the lands ceded to the United States by the tribes ot the Sacs and Foxes on the 3rd day of November One Thou- sand Eight Hundred and Four, and both parties being desir- ous of preserving a harmonious and friendly intercourse and of establishing permanent peace and friendship have for the purpose of removing all difficulties agreed to the following terms : Article 1. The said chiefs and warriors for themselves and the tribes they represent agree to relinquish and hereby do relinquish to the United States all their right, claim and title to all the land contained in the before-mentioned ses- sion of the Sacs and Foxes, which lie south of a due west line from the southern extremity of Lake Michigan to the Mississippi Elver. And they moreover cede to the United States all the lands contained within the following bounds, to wit: Beginning on the left bank of the Fox Eiver of Illinois ten miles above the mouth of the said Fox Eiver; thence run- 1812 ning so as to cross Sandy Creek ten miles above its mouth ; thence in a direct line to a point ten miles north of the west end of the portage between Chicago Creek, which empties into Lake Michigan, and the River Desplaines, a fork of the Illinois; thence in a direct line to a point on Lake Michigan, ten miles northward of the mouth of Chicago Creek; thence along the lake to a point ten miles southward of the mouth of the said Chicago Creek; thence in a direct line to a point on the Kankakee, ten miles above its mouth; and thence with the said Kankakee and the Illinois Rivers to the mouth of the Fox River, and thence to the beginning: Provided, nevertheless, that the said tribes shall be per- mitted to hunt and to fish within the limits of the lands here- by relinquished and ceded, so long as it may continue to he the property of the United States. * * ^ In witness Avhereof the said (N)inian Edwards, William Clark, Auguste Chouteau, commissioners aforesaid, and the chiefs and warriors of the aforesaid tribes have hereunto subscribed their names and affixed their seals this 24th day of August, One Thousand Eight Hundred and Sixteen and of the Independence of the United States, the forty-first.” Then follows the signatures. Thereupon counsel for complainant at the request of counsel for defendant read in evidence from Early Voyages up 2183 and Down the Mississippi by Shea,” on page 57 to 59, as fol- lows : ‘Hts prairies skirted by hills and very fine woods, where there are numbers of deer as well as on the river. There is abundance of game of all kinds, so that one of our men stroll- ing around after making the portage killed enough to give us a plentiful supper and breakfast next morning. Mon jolly is a mound of earth in the prairie on the right as you go down, slightly elevated about thirty feet. The Indians say that at the time of a great deluge one of their ancestors escaped and that this little mountain is his canoe, which he turned over there. On leaving Mon jolly we made about two . leagues to another little portage, about a quarter of a league. As one of our men, named Charboueau, had killed several turkeys and geese in the morning and a deer, we did well to give somewhat of a treat to our people and let them rest for 2184 a day. On the 10th we made the little portage and found half a league of water, and then two men towed the canoe for a league. The rest marched on, each with his pack, and we embarked for the space of a league and a half, and stopped for the night at a little portage five or six arpens otf. On the 11th, after making the little portage, we came to 764 Extract^ — Shea’s Early Voyages. — Continued. the Eiver Tealike, which is the real river of the Illinois ; that which we had ascended being only a branch. AVe put all onr furs in the canoe which two men towed, while Mr. De Tonti 2185 and we with the rest of our men marched on again, always through beautiful prairies. We arrived at the Village of the Peanzichias, Miamis, who formerly dwelt on the — of the Mississippi and who some years since came to settle in this place. There was no one in the village, all having gone out hunting. We went that day to halt near Massacre, which is a little river that empties into the Eiver Illinois.” (The foot note says this was a river Charlevoix tells ns was so called be- cause an Iroquois war party was there surprised and cut to pieces by the Illinois, but the present river is a branch of the Kankakee above the Desplaines.) “It was from this day that we began to have butfalo, and the next day two of onr men killed four, hut as these ani- mals are lean at this season they contented themselves with taking the tongues. These cattle seem to be larger than ours. They have a hum^^ on the back, the legs are very short, the head very large, and so covered with long hairs it is said a bullet cannot penetrate it. We afterwards saw them almost every day during onr voyage to the Akanseas. After having had to carry onr baggage for three days, and put it all together in the canoe, th§ river being low and full of rocks, we arrived on the 16th of Xovember at the place called the old fort. It is a rock which is on the bank of the river about a hundred feet high, where 2186 M. de la Salle built a fort which he abandoned. The Indians having gone to stay about twenty-five leagues lower down, we slept a league below, where we found two Indian cabins. IVe were consoled to see one perfectly good Christian woman. From Chicago to the Fort will reckon thirty leagues. Here navigation begins, which continues un- interrupted to the Fort of the Permavevvi, where the In- dians are now. ’ ’ Counsel here offered and read in evidence the deposition of George Albert Parrent. (For rulings on same see Abstract of Depositions, supra, p. 448.) 2187 Counsel here offered and read in evidence the deposition of Christian Hey decker. (For rulings on same see Abstract of Depositions, supra, p. 204.) 2192 Counsel then offered and read in evidence the deposition of Edward D. Brockway. (For rulings on same see Abstract of Depositions, supra, p. 458 .) 765 2194 Emil Eudolph, a witness for the complainant, testified as follows : Direct Examination. Counsel for complainant offered in evidence the document la- beled ^‘Certified copy of the Field Notes of the Meanders of the Desplaines Eiver,” the certificate attached to which reads: 2195 State of Illinois, Auditor’s Office, Springfield, December 9, 1907. James S. AIcCullough, Auditor of Public Accounts of the State of Illinois and by law custodian of the field notes of surveys of lands in Illinois, do hereby certify that the fore- going is a true, correct and a complete copy of the field notes of the meander survey of the Illinois Eiver and the river Des- plaine, from its mouth or junction of said river with the Kankakee Eiver in Sections 25 and 36, Township 34 north, range 8 east of the third principal meridian, as far north as the northern boundary line of Township 38 north, range 12 east of the third principal meridian ; all of which appears from the records of the field notes of surveys on file in this office.” 2196 In connection with that, counsel for complainant read the statute, entitled ^‘An Act to Eevise the law in relation to county surveyors and the custody of the United States field notes, approved March 2, 1874, in force July 1, 1874.” ‘‘Section 10. As soon as the present custodian of the orig- inal field notes of the United States surveys transferred from the United States Surveyor General’s office to this State, pur- suant to Acts of Congress, shall complete the copying thereof pursuant to law, and the new State House is ready for occupa- tion by the State officers, said custodian shall deposit said field notes and the said copies and all papers and documents pertaining thereto in the office of the Auditor of Public Ac- ‘ counts, thereupon the office of said custodian shall keep, and said field notes and copies shall be and remain in the custody of the Auditor of Public Accounts and copies thereof made and certified by him under his official seal shall be competent evidence.” 2201 Upon objection by counsel for defendant, after some col- loquy between counsel the court said : 766 Rudolph, — Direct Exam. — Continued. 2202 The Court. All right. Then it is stipulated by eounsel that the document now introduced — we will come to whether the title page is to be excluded, in a moment — excluding the certificate, excluding the cover written in counsel’s office, is a correct copv of the original field notes of the original Government survey, de- posited in accordance with the law with the auditor of public ac- counts; counsel for the defendant, however, reserving their objec- tions as to the competency of a copy of the original field notes 2203 being admitted in this case. =*= * * Excluding also the title page of said copy, placed thereon by the auditor. 2204 Here follows an explanatory note stating that the said field notes ‘^Exhibit I” and the other documents and documentary evidence offered or introduced in evidence herein, which are not set forth in connection with the statement herein, are set forth in this Certificate of Evidence at the close of the testimony in the appendix hereto, marked ‘^Appendix II.” Said explanatory note also states that proper references are made to said ‘E^lppendix II,” and the documentary evidence there- in set out are incorporated in said Certificate of Evidence by such references at the place of its offer and introduction and a reference to each of the said exhibits by the page of said ‘E4ppen- dix II,” where it so appears, follows the statement of the offer or introduction of each of said exhibits, thus Field Notes Exhibit I. (Appendix II, p. 3885; Trans., p. 5727 ; Abst., p. 1724).” 2205 Thereupon counsel for complainant introduced in evidence ‘‘Field Notes, Exhibit II (Appendix 11, p. 3886; Trans., p. 5771; Abst., p. 1724) and Field Notes, “Exhibit 3 (Appendix II, p. 3887; Trans., p. 5782; Abst., 1725). 2206 Thereupon counsel for complainant had marked for iden- tification “Survey Exhibit 4” (Appendix II, p. 3888; Trans., p. 5791; Abst., p. 1725). And thereupon the witness testified as follows: My name is Emil Eudolph, — age fifty-three, — residence. High- land Park, Lake County, Illinois; my occupation, land surveyor. I have been engaged in the business of surveyor since 1871. 2207 The principal part of my work is in establishing boundary lines, the lines of lands and many larger surveys for the 767 railroads and parks and cemeteries. Anything in the surveying line, locating the meander lines of lakes and rivers. I have been compelled to become acquainted with and have be- come acquainted with the plats, maps and rules of the office of the United States Grovernment in charge of land surveys in Illinois, made by and under the direction of the surveyor general. These documents. Field Notes, Exhibits 1, 2 and 3, — for 2212 instance take the one marked Exhibit 2, I see in the first page there in parenthesis. Volume 250, page 263, and then the legend, ^‘Meander by the S. bank of Illinois Eiver, in Sec. No. 26, T. No. 34, N. E. No. 8 east.’’ Below that there is a column — there are columns ‘‘N. E. 81 E.” and opposite that eight and two ciphers. Below that N. 84 E. and to the right of that five and two ciphers. 2215 N. 81 East means North 81 degrees east, that is the course as run; eight and two ciphers means 8 chains. North 81 east is the course and 8 chains is the distance, which this course is measured to the next course. The other abbreviations have 2216 the same meaning, right through until they strike the corner post, the section corner. Volume 250, page 263, means the volume of Government plat books, or Government surveys, and the page is the page number of that volume, where these Government field notes appear. ‘‘Meander by the S. bank” means meander by the south bank of the Illinois Eiver; in Sec., that is in Section 26, T. is Town- ship; No. 34 N. is north; E. is range. No. 8 E. is east; and then the courses and distances follows. That “east” means east of the third principal meridian. 2217 “Meander by the south bank,” as understood by surveyors, — as the running of a line taking its course and measuring its distance from some given starting point and continuing on to the ending point. That I would call surveying a meander line, and is generally applied as the meander line of the river, or lake 2218 or body of water, and the margin of the body. The meander line is indicated on this map by the border lines of the stream itself. The map is drawn on a scale of two 768 Budolpli, — Direct Exam. — Continued. indies to the mile and makes it too small to admit of any specific marking. 2219 The map indicates the meander line, the way that the Gov- ernment snrvey plats indicate the meander line. They show the location of the river in a general way by showing the direction and course between two meander posts in the section. 2220 I have tested the map by actual survey. The map shown me together with the field notes that have been shown me of the meander line of the Desplaines Elver in Section 25, Township 31, Eange 8, ascertain or make certain the location of the meander line of the Desplaines Eiver in that section. I can from these field notes which have been shown me and from this plat which has been shown me find a meander line 2221 located by them. Looking at Section 25, Township 31, Eange 8, shown on this plat, I observe on the northeast quarter the phrase abbreviated Ac.”; the northeast quarter is 160 and in the southwest is 116.21; in the northwest is 101.90; in the southeast is 91.11. The figures represent the area of the different fractional quarters, in acres. The area which is covered by the pale blue band which is labeled the name of the river would be outside of the meander line. On several other sections the legend 610 acres means that the section contains 610 acres. Sections 31 and 35 in Town- 2222 ship 31, Eange 8, each contain 610 acres by Government sur- vey, being a full section. In laying out a township, that is, what is called a Congressional township, when it is full there are' thirty-six sections in it, six miles square or thirty-six miles in the section. Commencing in the northeast corner, the sections run west, to six, then seven below it, and then east to twelve, and so alternate to the 36th, and 36 is the southwest corner. If the township is not full, so that some of the sections in it will not contain the 610 acres, if it is short north and south, the fractional sections will appear along the north line of the township. And if the town- 2223 ship is short east and west the fractional lines will appear along the west tier. The sections on the east side of a town- ship south of Section 1 will be full, if there is area enough to 769 make them full; and the first one to be made full is section tliirfv- six and the next one running north and south, twenty-five. For instance, here is Township 35, Eange 9, I notice the acres given on the top here of sections there. Section 1, 640A, Section 2 640A, Section 3 640A, Section 4 640A, Section 5 640A, and when you come to Section 6 the acreage is given as 563.96. The excess or the deficiency in surveying the township is thrown into the west tier of sections, east and west. In this case there seems to he a deficiency. So that the whole tier of sections on the west 2224 side of that township — is a fractional tier. Aside from the last one or two questions wherein I have been shown an illustration of what I have said, my answers have been made and are concerning the map that is marked, ‘‘McCul- lough Exhibit One,^^ and the one which was before me when the last three answers were made is marked “McCullough Ex- 2225 hibit lA” (Atlas page 3914; Trans., p. 6482; Abst., p. 1914), counsel for complainant explaining that these two maps are identical, and both were certified to by Mr. McCullough, but Mr. Ezra Williams has delineated upon there a lot of loose material that has come out in the other evidence, upon one of them, — by “loose materiaP’ meaning material not delineated with any of the rest of the material until Mr. Williams delineated it upon this. The reason why the surveyors made the difference in this 2226 particular section twenty-five, giving 160 acres to the north- east quarter of the section and the lesser amount to the other three-quarters of the Section 25, — ^because the section is a fractional section, being fractional on account of the river running through it, the meander of the river running through it and the fractional parts, the areas constitute, as I have said before, -the lines within the section line and the meander line. These figures, in the different fractional quarter sections of Section 25, Township 34, Eange 8 East, indicate the area of any acres of land within the meander line of those several quarters. Section 25 is a frac- 2227 tional section. It should be a full section according to G^ov- ernment surveys. The balance of the area that would make up the 640 acres of the section, not mentioned in these figures, indi- cating the several amounts in the several fractional quarters is to 770 Rudolph, — Direct Exam. — Continued. be found in the river and between the edges of the river and the meander line. There is a litle patch that has not been mentioned (indicating on plat), twenty-six acres, twenty acres and a fraction, there on the south, and the figures that have not been mentioned by anyone appearing in the southeast corner. 2228 The acreage shown on this map in the several quarter-sec- tions of it, within the meander lines, are as follows : In the 2229 northeast quarter, 160 acres, in the northwest quarter 101.90 acres, in the southwest quarter 146.24, and in the southeast quarter, that part of it north of the Desplaines Eiver and east of the Illinois 94.41 acres, and that portion of the southeast quarter of said section line, south of the Desplaines Eiver is 20.30 acres. A-146.24 includes both the southwest fractional quarter and also this very small part of the northwest fractional quarter, which lies south of the river, — that is a common practice to include the fraction of the adjoining part; it takes in all of the south fraction there, half or quarter, we will call it, lying west or south of the river. 2230 A different method was pursued in indicating the small area in the southeast quarter, that is 20 :30, which lies south of the junction of the two rivers, and that wasn’t connected with the tract which is immediately below it, because that is in a dif- ferent section. From the field notes, and the McCullough Exhibit 1, the streams which are shown to be present in Section 25, Township 34, Eange 8, have been meandered by the surveys of public lands of the United States. There is not anything called for by the expression meandered by the surveys of the public lands of the United States” which is absent from the field notes and this plat (McCullough Exhibit 1). Thereupon McCullough Exhibit lA and McCullough Exhibit 2A^ were admitted in evidence, the court reserving the question of strik- ing off certain annotations thereon, which plats appear in the Atlas, Vol. 2 of the Certificate of Evidence, at pages 3914, 16, respec- tively. Trans., pp. 6482-86; Abst., pp. 1914-15. 2243 This map taken in connection with the field notes of the sur- vey does show all facts placed on maps pertaining to a mean- der line made by the general government on this scale as a part of the survey of vacant public lands to be offered for sale. The CouKT. That is on the basis that this map has been admitted under this understanding. It is possible to retrace the original meander line in Section 25, Township 34, Eange 8, from these notes. I have retraced 2244 them by survey. I have a plat of my surveys on a larger scale. It is this which is now produced (Exhibiting plat to witness), bearing also the legend ‘^Plat of Survey of the North Fraction of Section 25, abbreviated. Township 34, N. R. 8-E, of the Third Principal Meridian, surveyed April 13th to 23rd, 1908, by Emil Rudolph and H. H. Bremer, Surveyors”, — which said maj) was received in evidence and marked ‘^Rudolph Exhibit 1” (Atlas, p. 3941; Trans., p. 6551; Abst., p. 1922). Mr. Bremer is a surveyor who is associated with me in this survey. We together made this survey. The meander line in this section as run by me is indicated upon this plat ‘‘Rudolph 2245 Exhibit 1.” (Pointing to map.) The line drawn from A to B indicates the Gfovernment meander line from the Gov- ernment field notes. It is a line made of dots and lines, in black, connected by circles when the line changes. Different courses and distances are shown beginning with South 28-E, one chain, and fifty links. Thence south — A¥ell, I am going the wrong way accord- ing to the Government; we had better begin at the west end.- The point B is the west line of Section 25, and the meander post of the river. Beginning at that point the course is South 76 degrees east, 13 chains. This is the course that is followed 2246 and delineated on this map. That is a true and correct de- lineation or platting of the Government meander line. As to the area enclosed by the double line near the junction of the Desplaines and Kankakee, labeled here Desplaines River and mouth of Kankakee, and near that place there is a double line describing a rude trapezoid, labeled “Coffer Dam.” The coffer-dam is the lower part that has not been washed away, and the side, the east side shows stone and earth, or earth on the bottom, I think, and stone piled on top, enclosing the space as shown by this double line. There was a coffer-dam there when 772 Rudolph,— Direct Exam. — Continued. I made this survey. My survey correctly indicates the situation and dimension of the coffer-dam and the area included therein, by scales. 2247 There is something more on the map. On the right hand end of the map, I see another representation which is marked on the scale 400 feet to the inch. This separate representation over here (indicating) represents the survey of the north fractional part of the section, or all that part of Section 25, lying northerly of the Desplaines and the Illinois Eivers. That merely shows the sec- tion and is a sort of a key to the larger map, showing where the meanders have been taken. 2248 These lines on this, which I have described as meander lines, represent the position of the retraced meander line of the Government. Taking the original Government field notes as a basis, and from the test and actual survey that I have made, I would say that these meander lines had actually been run. I did go to Springfield and examine the originals of these field notes in the auditor’s office. I compared these documents, these field notes, field note exhibits that are produced here, with the originals in the office of the auditor. These field notes exhibits that are produced here are true copies of the originals in the auditor’s office. 2249 The map is correctly drawn to a scale of 100 to the inch throughout that towpath bank there, from the water’s edge on the one side to the water’s edge on the other. As to the conditions that I found, — the tow bank of the canal is the same throughout with the exception at various points along the line there were deposits of stone in some places, widening the tow bank of the canal, and in some places dumped on the river side of the canal. The tow bank or towpath is probably three or four feet above the water in the canal and as much as twenty feet, I should say above the river bank. I have taken the levels there, but I do not remember the exact figures. The stone that had been placed there on the towpath, was a sort of a sandstone, bluish sandstone of a very poor char- 2250 acter, and seemed to scale off. I think the stone was perish- able because it scaled off. If you took a piece up and dropped it, it would break in pieces almost like glass. It was just turned on loosely as though it had been dumped from a car and leveled otf in a loose way. There was not anything in the nature of rip- rapping about it. 2251 Thereupon it was agreed by counsel that the writing on the left under the head of Areas’^ and on the right hand margin, that which is marked ‘‘Note’’ shall be omitted; and the balance of McCullough Exhibit II remain, and it is agreed that it is a correct representation of what it purports to be. Cross-Examination. 2252 I profess to know what rip-rapping means only from a lay- man’s standpoint of view. I have never examined any dic- tionary upon that point. I do not profess to be so acquainted with the meaning of that term as that I would set up my definition as against Webster’s for instance, if Webster said loosely thrown in. As to how many pieces of that stone I did examine, — I saw it all along the line. I took it up to find out whether it was brittle and would break like glass probably a dozen pieces. 2253 As to whether there are ditferent strata there, some of which are soft and some of which are hard sandstone, — those I examined were all soft. In the map that I have prepared, which is purporting to show the meander line, the line of the river shown there is the line of the river as it is now. I did not undertake to ascertain the line of the river before the drainage water was turned into the river. The line of the river that I have shown is the water line, the edge to which the water comes at the time I made the survey, as near as I could get it. The meander line does not conform to the edge of the water. A meander line in its nature can conform to the edge of the water, at only very few places, perhaps; it may touch, — • as a matter of fact a meander line is ascertained and determined by running straight lines between points shown by the field 2254 notes, so that it does not conform to the line of the river precisely. I said in direct examination the meander line of the river was indicated by the lines of the stream itself. Upon this map, McCullough Exhibit 1, the lines of the stream 774 Rudolph, — Cross-Exam. — Continued. are not shown any differently. If the stream had not been mean- dered, the line of the stream would be just as it is now, so that there is nothing in the mere line of the stream itself to show that the river has ever been meandered. 2255 The DuPage Kiver is not meandered and the lines ’showing the borders of that stream are no different from the lines showing the borders of the Desplaines. These field notes take in the shoal of the Desplaines Eiver from Section 25, Township 34, 8 to the north line of Township 38. That would be about the line of 39th street in the Town of Lyons, extended west to the Des- plaines Eiver. 2256 I could as well draw a meander line from field notes up to the south line of Eiverside as I have been able to down below. The section corners as shown upon that plat are the north- west corner of Section 25, stone, northwest corner of Section 25, 34, 8, as whether any of them correspond to the fence corners on the actual ground, I relocated the northeast corner of Section 25. I found nothing there in the way of a monument, nothing but old occupation fences. The southeast corner of Section 25 came in about the middle of the Illinois and Michigan canal 2257 AVell, take here on the ujDper left hand corner, the line run- ning diagonally across, the Government measurement equals 5,313 feet, I made that measurement 5,333-4/10. It is not true that that line should be 5,280 feet. I relocated all those lines in Sections 24 and 25. I made a survey of the whole section, say 24, located, all the occupation. Then I surveyed the whole of Section 25 in which this meander line is located, surveyed part of 36, also part of the section east of Section 24. My starting point when I first started in the survey was beginning at a stone at the northwest corner of Section 25. That was the first monument that I started from, that is a known monument. From there I measured north and across to the northwest corner of Section 24. I did this 2258 in order to get a certain check on my lines by taking in all of the occupation in these different sections, and in this way I was enabled to locate the section corners that were lost or that could not be found. I have never seen a survey by the United States on which the meander lines of this river were actually extended. I don’t know 775 as any such map exists. I would be likely to know if it did. The Land Office of the United States for Illinois and Missouri was located at St. Louis. I never knew of any such land office being located in the State of Illinois. You understood me correctly that I made an accurate survey of that coffer-dam, and that that portion of it referring to the 2259 coffer-dam actually represents it to a scale. We made the measurement. 'Re-direct Examination. Directing my attention to McCullough Exhibit 2, as to the sub- ject which I was cross-examined about, on the 'east and west line between Township 38 and Township 39, in Range 12, a little to the west of the divisional line between Range 12 and Range 13, I can locate upon that line between Townships 38 and 39 the point up to which the river was meandered, according to the field notes, as far north as the north line of Section 1, Township 38, Range 12, to the asterisk placed on that line, part of the exhibit 2260 (point to the asterisk). I have seen the government plat of the Desplaines River north of that point. I have got a copy of that. It is in the other room there. (Witness produces plat.) The number of the section in Township 39, Range 12 East, that lies directly north of Section number one in Township 38, Range 12 East is Section 36, Township 39, Range 12. In this book which I might call plat book, the label here at the top of this page 12 is a plat of Township 39, north of the base line in Range 12 East of the third principal meridian, southeast of the old Indian Boun- dary line. The line between Section 36 of this page 12 of this plat book is the same line as the north line of Section 1 in Township 38, Range 12. This wavy line that comes up through Section 36 on this page 12 is the Desplaines River. That is the same portion of the river which is indicated in the unplatted portion extending into the line on McCullough Exhibt 2. There are no differences in 2261 manner in which the river and the section are platted north of that line, and what they are south of that line, as they are indicated. In the way in which the sections are treated by 776 Rudolph, — Re-direct Exam. — Continued. the surveyor the difference is that in the meandered part the areas are given in different quarter sections. In the meandered Section 1, the northwest quarter is marked 165 acres; the northeast quarter 87 acres on the east of the river, and 42 acres on the west of the river; the southwest quarter marked 160 acres ; the southeast quarter east of the river 88 acres, southeast quarter west of the river 25 acres. The section and range number is Section 1, Township 38 north, Eange 12, east of the third principal meridian. The total area of that section 2262 as given on McCullough Exhibit 2, for the west half of the section west of the river 392 acres; for the east part east of the river 177 acres. The area of Section 36 upon the piai which I have produced, lying directly north of that Section 1 is marked 640 acres ; and the area given on the Section 35 to the left and 36, into which the line representing the river extends are mark- ed full sections, 640 acres, — so all the way up the river to the sections next to the top line. The last two rows of sections are abbreviated. The north tier of sections in the township are the fractional sections, where the deficiency of the surplus in the township are accounted for. In that portion of the river up the river from Section 1, Town 38 north, Eange 12 east, the bed of the river is taken into account in giving the acreage of the sections and quarter sections, while below that away down the river from that it is not so taken. Thereupon counsel for complainant read in evidence the two following certificates upon said page 12, referred to by wit- ness : 2263 ''Surveyor’s office, St. Louis, 31st of August, 1837. The above plat of township 39, north of the division line of range 12, east of the third principal meridian, southeast of the old Indian bonndary line is a correct copy of the plat thereof, on file in this office. Dan Dinclan.” Underneath that: — "Department of the Interior. General land office, Washington, D. C., Sept. 6, 1895. I hereby certify that this photo lithographic is a true and literal exemplifica- tion of the township plat of survey to which it purports to relate now on file in this office. E. F. Burt, Acting Commis- sion.” 777 2265 Mr. Emil Rudolph fui’ther testified : McCullough Exhibit 2 begins at the south line of Township 36, where McCullough Exhibit 1 left off. It goes on up through Town- ships 36, 37 and 38, up to the north line of Township 38 in 2266 Range 13, between 12 and 13. And the river crosses that line in Township 39, Range 12, on the line between 38 and 39 in Range 12. Then McCullough Exhibit 1 and McCullough Exhibit 2 together exhibit the whole of the river Desplaines from the mouth running upward to the north line of Township 38, in Range 12 east. With reference to Chicago that last point would be in what in the city is 39th street at its intersection with the Desplaines River, — that is, it is due west. This McCullough Exhibit 2 goes right on across the portage, exhibiting Mud Lake, exhibiting the west fork of the south branch and the south branch of the Chicago River to Lake Mich- 2267 igan. Thereupon it was agreed that the label on the top of Mc- Cullough Exhibit 2 put there by the auditor together with the note, asterisk, ^ ‘field notes of the meander survey show this point as the head of navigation, but the original plat shows no indication there- of,’’ — on said exhibit should be struck off, together with the cer- tificates, and the map admitted in evidence subject to the objec- tion of the defendant that it was immaterial and irrelevant. Said map is shown in (Atlas, p. 3915; Trans., p ; Abst., p ). 2271 Mr. Rudolph further testifies: McCullough 2-A begins where McCullough 1-A left off. 2272 McCullough 2-A goes on up through Townships 37 and 38 up to the line between 38 and 39, showing the river all the waj with the same label and note, and then extending on through Ranges 13 and 14, shows Mud Lake, the west fork of the south branch, the south branch and the Chicago River to Lake Mich- igan. 778 Rudolph, — Re-direct Exam. — C ontimied. Then they — the two sets, one and two on one hand and 1-A and 2-A on the other, together, show the same things. DuPage Creek or river extends through Section 17, Township 34, Eange 9, but the acreage is shown as 640 acres, or a full section. When you come over to Sections 7 and 8 in Township 34, Eange 9, which are the west tier of sections, the east quarters through which the river itself runs are indicated with 160 acres, or a 2273 full quarter section. But the west quarter of those sections are fractional, because they are in the west tier of sections of the township. Section 5 in 34, 9, is 640 acres. I examined the field notes at Springfield in this matter a good many of them, not all of them, and there are not any field notes of meanders for DuPage Eiver or creek such as I have produced for the Desplaines Eiver. Re-cross Examination. On that map over yonder the Chicago Eiver runs off in a fork to the Avest. What that is known as I don’t know, unless it is the west fork of the south branch. There appears to be another fork running south, that is known as the South Fork of the South 2275 Branch. Bubbly Creek runs into it. That is not Healy’s Slough. Healy’s Slough would be in Section 29. It would be in the northeast quarter of Sections 29 and 39. In Eudolph Exhibit 1, I show a number of blocks in yellow, con- tractor’s quarters, engineer’s office, those were frame buildings of the — recently put up, apparently used in connection with this Avork. I found a suspension bridge across the canal also. That appears to have been recently put up in connection with this work. My answer applies to all the yellow blocks, all the rectangles 2276 shown here. That is my autograph attached to the exhibit there. That is Mr. Bremer’s autograph below mine. That autography in the practice as a surveyor goes as a certificate of the correctness of the plat. Q. Do you understand that it has any higher weight than your sworn testimony on the stand as to the correctness of the plat? A. I don’t know. I guess it has about equal weight. 77f> Herman H. Bremer, a witness for complainant, testified as follows : Direct Examination. Till My name is H. H. Bremer. My first name is Herman H. ; residence, Chicago ; occupation, surveyor. I have been engaged in business as a surveyor about 15 years. My experience consists in relocating lines, establishing original subdivision lines, in laying out cemeteries, and in locating rivers, ponds and lakes, railroad work and farm work. In my work as a surveyor I have necessarily become acquainted or am familiar with the field-notes, plats and maps and the practice of the United States Government surveyors in charge of land surveys in Illinois, made by and under the direction of the surveyor general. Eeferring to those field-note exhibits, I have made use of those field notes in making a survey. 2278 In making this particular survey. Section 25, I was asso- ciated with Mr. Rudolph, who has just left the stand,— in making a survey of Section 25, Township 34, Range 8 east of the third principal meridian. This plat called Rudolph Exhibit 1, is a correct representation of that survey. This line which is shown on this plat between the letters A and B is a series of courses run for the purpose of determining the meanders of the Desplaines and Illinois Rivers. The notes and courses are a copy of the rec- ords as furnished by me, and purport to be copies of the original Government survey. That is I used these field-notes which are in the field-note exhibit and laid this line out from those field- notes. Looking at this map which is labeled McCullough Exhibit 1, the meander of the river is indicated on the exhibit, by a sin- 2279 gle line on either side of the river demarcating the line be- tween land and water. I see that the scale of that map is indicated as 40 chains to an inch; that is the same as two inches to a mile. The indication of the meander line on that plat, McCullough Exhibit 1, is the one customarily used by surveyors of the United 780 Bremer j — Direct Exam— Continued. States in platting public lands for sale when they plat them on a scale of that size. It is the customary method of indicating the meander line of the stream. That scale is the customary size of Government plats of survey of vacant lands for sale which I have ever seen. This map, Exhibit 1, which is before me, together with the field-notes in field-note Exhibit 1, 2 and 3 of the survey of the meander line of the Desplaines Eiver in Section 25, Township 34, Eange 8, ascertain or make certain the location of the mean- der line of the Desplianes Eiver in that section. I could from the field-notes which describe these meanders 2280 which appear in those exhibits and from this plat which is now before me find the meander line as located by them. These notes and plats make certain where the line is. I have by actual survey in the field from these notes located that line. It is correctly shown upon this plat, Eudolph Exhibit 1. Taking the original Government field-notes as a basis, I would say from actual survey that these lines had actually been run in the Government survey. This map taken in connection with the field-notes of the sur- vey shows all that is placed on maps pertaining to the meander line according to the practice prevailing in the land-office of the United States upon plats of public lands for sale made of that size. We went down and made this survey between the 13th and the 20th of April, 1908. 2281 As to the condition of the towpath bank between the canal and the Desplaines Eiver along this strip here which extends up stream from the area enclosed with lines marked ‘^coffer-dam,’’ — I found that the towpath had been filled and also some stone taken and thrown along the side of the tow-path widening the same. In other words the towpath had been graded. The character of the stone which I saw used there was a poor grade of sandstone. It was perishable, of a perishable nature. Q. I will ask you to state what the effect upon that stone would be of causing a dam to be thrown across the river, a permanent dam at the point where the coffer-dam is indicated, and a flowing 781 of the water up against the towpath bank as graded and filled in the manner you have described. 2282 (Counsel for defendant objected to that as incompetent, im- material and because there had been no foundation laid for it. Whereupon after argument the court sustained the objection and ruled : The CouKT. You may go into the question of what has been done down there. Counsel for Complainant. I will modify the question. Q. Just describe to the Court the form of construction which you found existing on this towpath bank in this area where the towpath bank is indicated as being about 70 and less than 70 feet wide between the river on one side and the canal on the other. Counsel for Defendant. I object to that on the ground that it has not been shown by any evidence offered yet that that work has been completed at that point. Thereupon it was suggested by counsel that Mr. Heyworth 2284 had testified as to this matter and thereupon counsel for com- plainant offered and read in evidence deposition of James 0. Heyworth. For rulings on same see Abstract of Depositions, supra, p. 371). 2308 Thereupon the witness was asked the following question : Q. Mr. Bremer, you may state what the effect of the crea- tion of the pool by means of a fixed dam and power house built in the bed of the river across the Desplaines Eiver near its mouth at the point where you have located the coffer-dam would be, what the effect of this pool and of the waves and water and frost and storms and floods upon the pool as bounded by the towpath for the 1,500 to 2,000 feet north, upstream from the dam, would hel Counsel for Complainant. Just a moment, Mr. Starr: I think you used the word ‘‘Pool’’ when you meant towpath bank in that question. Counsel for Complainant. Yes. Counsel for Complainant. What would be the effect upon the towpath bank, I think the question should be. Counsel for Complainant. Yes, — what would be the effect on the towpath bank for 1,500 to 2,000 feet upstream, from the dam, of the erection of this dam and the creation of this pool 782 Bremer, — Direct Excun. — Continued. under the action of the water, the elements, floods, storms and frost? 2309 (To which question the counsel for defendant objected and thereupon the Court ruled as follows:) The Court. Well, I will let you frame it yourself, but I will sustain the objection to the question as put because of the element not being present that the bank is to be protected in some way. I appreciate the force of what Mr. Reeves said yesterday, that they might spend ten million dollars, or whatever the sum named was, in building up a slope wall, a solid wall of concrete all along this whole place, and render it perfectly safe and that would not be the thing that they are going to do, or that they are required to do under their contract. 2310 Thereupon counsel for defendant further objected on the ground that no foundation had been laid to show the wit- ness’ qualiflcations. Said objection wms sustained and thereupon the witness testifled as follows: 2311 My experience in the matter of planning, respecting hy- draulic work, dams and power houses, and so forth, — I have planned dams, at least two, and have made a study of hydraulics. 2312 Cross-Examination. I planned two dams; one’ of them has been erected at Neodesha, Nebraska, a dam about 12 feet in height and about 800 feet long. I was not in charge of the erection, I drew the plans for it. I did not superintend the erection and I was not present and did not ob- serve it at any time after it was erected. I never superintended the erection of any dam. I never worked practically upon the erection of any dam. I myself have observed on the ground the action 2313 of waters upon dams at different places, — at Joliet partic- ularly, I have seen the action of the water on the dam there, the bear trap dam, and at different places. The Joliet dam is' built of concrete and there are no levees there to be washed at all. What I saw there was the water rushing on or over the con- crete. As to the action of the water upon any earth levee, I could not find anything there to illustrate it from personal experience, nor anywhere, from personal experience. Thereupon the Court ruled that the witness was not qualified. 783 Direct Examination {Continued) . As to describing the condition of the towpath, I found the 2314 towpath had been tilled about two feet above its normal level with a sandstone shale, for a distance varying between 1,000 and 1,200 feet, either way from the site of the Economy Com- pany’s plant, proposed plant. This sandstone, in my opinion, is not — Thereupon counsel for defendant objected and counsel for com- plainant was directed by the court to ascertain if witness was qualified to state what he knows about stone. Counsel, for Complainant. Q. Do you know the character of sandstone in reference to durability, are you acquainted with it? Have you had experience in the observation and use of it? A. I have. Q. And the specification of it as a material. A. I have had observation as to the use and durability and kind of sandstone which I saw on the sill of the towpath and also the use of it for building purposes. Q. Well, what was the character of this? 2315 Cross-Examination. I did not say that I had any particular experience in specifying sandstone for buildings. I do pretend to have knowledge other than that which the ordinary individual having no special opportunities for observation or means of observation has of the character of stone. I acquired it by a study of geology. As to what are the various kinds of sandstone, I knew it in a general way from the study of geology, and to ask me to specify the different strati- fication is almost beyond me now. It is fifteen years since I have studied geology. As to setting myself up as an expert on sand- stone, from remembering what I have studied, — I have seen this particular kind of sandstone in different places, and this par- 2316 ticular sandstone interested me while on this work of sur- veying this particular section on account of the shale, and the nodules that are found in it. I have seen sandstone similar to it underlying the coal mines in La Salle County, in the northern Bremer, — Cross-Exam. — Continued. portion as I recollect near Oglesby, and it struck me that it was peculiar that that stone should be used — Counsel for Defendant. Now, I move to strike that out. The Witness. This is a general discussion. The Court. Yes, that may be stricken out. Witness further testified: I saw this stone that is placed on top of the towpath down at the site of this proposed dam. I know what the effect of the elements, air and water, would be upon that stone, — ^which last statement was objected to by counsel for defendant, and witness on cross-examination stated that he had observed the effect of the elements on stone of this character very recently at the 2317 site of the proposed dam. The standards to which I refer in my judgments on this stone is this stone itself in connection with stone of a similar kind, of similar appearance, which I have seen, on the mine dumps 2318 at Oglesby and Canley, Illinois; also at Bloomington and Braidwood and Coal City, Wilmington and Sunfiower, and I have observed it for a period varying from one day to probably two months. I had a special reason for examining it. It was not a part of my duty to examine it and study it. It was a matter of casual interest. I was studying geology at that time. I was continuing my prior studies. I was working in the coal mines at that time and had a good opportunity to study geology. I 2319 was studying geology seriously. As to my meaning in saying that my study of geology was fifteen years back, as a part of my college course, — I meant to say that in my line of work a man never ceases to study. I have not made a serious study of geology since the day I left college. Q. You have never observed the action of the elements upon stone laid or arranged as this stone is on this towpath, have 2320 you? A. The stone is not laid. The Court. I am not going to accept testimony of this character. Cross-Examination. Turning to the map McCullough Exhibit 1, that maj) by itself shows the meander line of the Desplaines Eiver. On being asked ‘‘Could you take that map by itself and run the meander lines of the Desplaines River the witness replied^ “No, sir.’’ Q. Then the map by itself does not show? A. It shows the meander of the river as I take it. 2321 I cannot from this map trace the meander lines as laid down in the field notes of the Government survey. There is nothing on this map by itself from which I can run the 2322 meander lines of that river, because the field notes are an in- tegral part of the survey and the map. They become a part of the map of necessity because the map was constructed of the field notes. The map is certified to as being constructed from the field notes; not particularly this map, but a Government map. There is not anything on that map from which I could run the meander lines of the Desplaines River, as I claim they were under the Government survey. That map alone, would convey no knowl- edge to any person as to where those meander lines ran, 2323 and when I said that there is a thin line each side of the river on this map, McCullough Exhibit 1, which shows the meander line, I refer simply to the line which marks the borders of the stream, the division between land and water, and that exists as well on unmeandered streams as on meandered streams, so that in that part of the Desplaines River there is nothing in the boundary itself different from the boundary of an unmeandered river, in this line dividing the water from the land that marks the meander. There is no other line which shows the meander line on that map. I testified that the meander was the dividing line between the water and the land. And the line that was run by the surveyor was simply a line that would in a general way define the sinuosity of the stream. I am using the term 2324 meander in a different sense from the term meander line. In my direct testimony when I said that this line marked the line between the land and the water, the meander line, I meant the meander. The meander line and meander are taken in a different sense in surveying work. I know of no map made by the United 786 B rem er,—C ross-Exa m . — Conti n ued. States Government on whicli the meander line is run and extended of the Desplaines Eiver. 2325 I stated on cross-examination that there was no map which would show the distance and courses, as run by the surveyor, which would define that meander line on a map made on that scale. It is true that in platting rivers under the survey by the gen- eral Government, that on maps of this scale where a river has been meandered, that the marginal line showing the river is re- garded as the line representing the meander line, in a general way. 2326 Re-direct Examination. That means that in maps of this scale there is nothing showing the meander lines except the same sort of line that appears between water and land, whether the stream has been meandered or not. The stream itself as delineated, would give a general indication as to where it had been meandered by distances or courses. 2327 There is nothing on that map which shows where it has been delineated, but in a general way the map shows that the stream has been meandered by distances and courses, and these distances and courses were laid down on a paper and from that the meander line is shown, or the border lines of that stream as shown are traced. I can tell from that map without the knowledge of the field 2328 notes from the map alone, that that stream has been mean- dered, or some other stream on that map has not been mean- dered, by reference to the sections and the figures given in the sections. The fact of the acreage given in the quarter section in place of the 160 acres indicates to my mind that that was derived from an actual meandering of the stream,— partially ; but on a mean- dered stream the rules of survey state that the surveyor shall measure to the stream and shall there cease his measurements; and then measure from the north line of the township and this division on that map by distances measured north of the town- ship lines and south from the township lines given, leaving in this particular instance the north tier of sections full with the 787 exception of the west section of that north tier. In other words they measured up from the south and measured down from the north. The distances of those lines are stated on that map, 2329 but not the meander lines. And that is only done under Government rules where the river is one which has been mean- dered. Re-cross Examination, This surveying of the meander, whenever it was done or what- ever was done, was done in consecutive order, practically at the same time, as a part of the same work. There is nothing on that map that would tell you if you .were buying property bordering on the river where the meander line as to that particular property ran, nothing that would show its courses and distances. 2330 Thereupon the allegations in the answer were called up which read as follows, to-wit: ^^And this defendant avers that if the title to said lands outside of the alleged meander lines along the said Desplaines Elver and in the bed thereof remains in the State, it only so remains in the State in trust for canal purposes and the Canal Commissioners of the Illinois and Michigan Canal are the proper parties to cause said suit to be brought and to con- trol the same, and that the attorney general of said State upon the relation of Charles S. Deneen, the governor thereof, or otherwise, has no right, power or authority to institute or prosecute this suit without the express consent and direction of the Canal Commissioners of the Illinois and Michigan Canal ; and said bill does not show that it is exhibited l)v or with the authority of said Canal Commissioners, but, on the contrary thereof, shows that it is not exhibited by or with their authority.^’ And the court heard arguments thereon and ruled as follows : The Court. It seems to me that the attorney general would have 'a right, on behalf of the public, to intervene, and bring this suit. If the acts of the commissioners are a nullity, the commis- sioners have gone beyond their powers, despite the fact that the commissioners are given a statutory right to recover properyt claimed adversely to the state, or property of the state trespassed upon, inasmuch as that grant of power does not purport to be exclusive, I am of the opinion that the common law power of the attorney general to represent the public for the purpose of 788 Billing of Court. — Continued. preventing injuries to the property of the state, so far as there is a common law power to do that, is not thereby taken away. If the contracts are within the power of the Canal Commission- 2331 ers under the statute, then in the absence of some allega- tion of fraud, and if there were such an allegation, the proper proceeding would be to make the Canal Commissioners parties, and on behalf of the cestui que trust seek to have the contracts themselves annulled — in the absence of any allegation of that kind, if there be power in the Canal Commissioners to grant rights in the 90 foot strip, then the attorney general would be unsuccessful as to that part of the suit. But on the real point suggested, which was the first, the primary point raised, he of course has the right to challenge the power to make these contracts, and he has the right to bring a suit for the purpose of having the court determine whether or not under the acts, the contract made come within the power of the Canal Commissioners or not. That was really the question that was to be presented to the court, as I understood it. Now, on that question I hold that the attorney general is the proper party complainant, the proper relator, but that the fact that. these contracts may be improperly carried out, would not, in the absence of some charge of collusion, give the attorney general the right to come in and restrain the work on such a con- tract as this, in which the Canal Commissioners have reserved 2332 the supervision and the right and the duty to guard what they consider to be the interest of the state in that respect. So that it is only if there is a total lack of power in the Canal Com- missioners who enter into a contract of this kind that the attorney general would succeed in the case. But as I understand it, the challenge goes beyond that, and the answer is in tlie nature of a demurrer to so much of the bill as relates to the right of the attorney general to interfere with the work on that part of the property wdiich is not within the meander line of the river. Is that correct? Counsel for Complainant. We challenge their right to inter- fere with the 90 foot strip, whether that is within or without the meander line, and we likewise challenge the right to touch any of the land without the meander line, if that be the bed of the river. 789 The Court. But as they raise the question, tliat raises two 2333 separate issues. Counsel for Complainant. Yes, sir. The Court. And the one as to the rights without the meander ]ine of the river is dependent, at least according to your claim is dependent upon whether the river is navigable or not. You claim that river to be — I would not say that, I won’t say that you are solely relying upon the fact that it is a navigable river, you may claim other rights which would give you the right to interfere, and they claim as a matter of defense, that whether a river is navigable, first that the river is not navigable, and second whether the river is navigable or not, nevertheless you cannot interfere with what they are doing on the ground, among other grounds, that it is not a purpresture, but at best a nuisance, and as a mat- ter of fact it is not a nuisance. Does that statement sum up your defense? Counsel for Complainant. We have not argued that at all in this argument. The Court. No, I say that is not in this argument at all. This argument has to do with the other part of the case. Counsel for Complainant. That is right. Counsel for Defendant. I think your Honor stated our posi- tion with substantial accuracy. We claim first that the river is not a navigable stream, and we claim that if it is a navigable stream, still, the structure that we propose to put there is 2334 not a nuisance, and would not prevent any — The Court. First, it is not a purpresture, second, it is not a nuisance. Counsel for Defendant. And would not prevent any existing navigation or impede it in any way. Counsel for Complainant. We set out three bases of the bill; first, that the river is a navigable stream which they have no right to dam; secondly, that the bed of the river which lies outside of the meander line is not their property, but is the property of the State, and neither of those questions have we argued. The Court. No. 790 Ruling of Court. — Continued. Counsel for Complainant. Very well. We say that by these contracts they seek to take and use for private purposes the 90 foot strip, the Kankakee feeder and the cut-off, and that those were beyond the power of the Canal Commissioners to grant. The Attorney General has the right to intervene. That third is the thing we have been arguing. The Court. Now, as to the 90 foot strip, I cannot see any other reading in the Act of 1^74 hut that the 90 foot strip may he leased. There is no limitation on the power to lease canal lands and lots. There is an express exception to the power to sell the canal 2335 lands and lots. That exception is the 90 foot strip. Counsel for Complainant. May I suggest there, your Honor, that we are not dealing with the fact on that. The ques- tion here is whether the Attorney General — ^whether the suit is properly brought to try that among other things, and we have not got through with that. Counsel for Defendant. You haven’t any more statutes to present here, have you? Counsel for Complainant. The only question here to he de- termined is, as the court has said, as I understand it, is whether it is properly brought to draw that out. The Court. That is what I understood first, but your argu- ment has taken a different range, as I understood the argument. CoUFTSEL FOR COMPLAINANT. YeS, sir. Simply to illustrate the reason why the Attorney General ought to have the power. Counsel for Defendant. I don’t think that the other gentle- men ought to go into as full an argument as they did on that proposition and then say it is not here for consideration. Counsel for Complainant. Pardon me — The Court. Let me ask Mr. Peeves what possible facts can be brought that have not been brought to bear on the interpreta- tion? 2336 Counsel for Complainant. I will answer your Honor frankly about that. We expect to show and we have deposi- 791 tions here to show that have not been read to your Honor, that the flooding of this bank will destroy the canal in time. It will destroy it in flooding this 90 foot strip ; and second, while what I was driving at in the decisions, most of them, that I read to your Honor was — and I did not make any argument on this ; I just read from decisions here — I was trying to show that this 90 foot strip was part of the canal itself. The Court. Yes. Counsel for Complainant. We follow that by facts already taken, ready to be presented, so we can read them to you, that the flooding of the canal would destroy that part of it which we contend is a part of the canal, and that they have no right to sell the canal nor to lease it ; and then before your Honor passes upon the question of the right to lease the 90 foot strip or any part of it — I did not argue that nor do I think any of the rest have par- ticularly, except Mr. Scott insists they have, but I don’t think so, and ultimately I want to be heard on it. The Court. I won’t preclude you. I will refrain from giving a decision on that point, particularly in view of the fact that as I understood it when we started out it was the first propo- 2337 sition that was to be argued. Now, if there is anything more bearing on it that is going to throw any light on it, I will hear it before I decide it. There is this possibility left open, and that I suggested before the argument began here, that if this work, no matter how done, will necessarily destroy that canal, then it amounts to a grant of the canal beyond the power, but that limits them in their proof — limits the State in its proof to the necessary effect of any such work, regardless of how it is done. Counsel for Complainant. May I suggest, your Honor, and I do it I think with the full concurrence of Mr. Scott — The Court. Pardon me, I am not passing on the question that you raised of spending one hundred million dollars to do some- thing whicF would be worthless, I do not mean to say that if it could be done by the expenditure of a vast sum of money totally out of proportion to everything that would be within the range of legal possibility. 792 Ruling of Court. — Continued. If your contention is that the necessary effect of this contract is to destroy the canal, that is one thing. Then my otf-hand view of that would be that it would be beyond the power of the Com- missioners, and under what I have just said that you would have the right to challenge it. If, however, you are relying on the lack of power to deal with the 90 foot strip, irrespective of its effect on the canal, — and that has been the argument presented — then unless there was something more to be added by way of argument I do not see how testimony could affect the conclusion. , Counsel foe Defendant. If I understood your Honor correctly it was this point; that the burden would be upon them to show that it would be impossible to do the work; not only to consider the different methods of doing it, but whether it would be possi- ble to do it without destroying or affecting injuriously the canal. The Court. Yes, unless they convinced me that my present impression is wrong as to the power of the Commissioners to deal at all with the 90 foot strip. Now, Mr. Beeves has further argu- ment to otfer on that point as I understand. 2338 Counsel for Complainant. I have made no argument so far upon it, your Honor, and 1 would like to be heard ulti- mately upon that proposition. Counsel for Defendant. As the matter now stands, unless your Honor should change his opinion upon thal point, it is then up to the State to show that this work could not be done without injury to the canal, otherwise these contracts are valid. 2339 The Court. I will hold my mind open on the broad prop- osition that there is no right to deal with the 90 foot strip. Counsel for Defendant. Hold your mind open on that? The Court. Yes. Counsel for Defendant. But on the question of evidence, if the court please — The Court. On the question of evidence, the evidence may be confined to the question of the necessary effect of any work possi- ble under this contract on the canal itself. The other is a matter of law, not a matter of evidence, as I understand it. Counsel for Defendant. I think so. Counsel for Complainant. Of course, if your Honor please. 793 in justice to the Attorney General’s office it is to l)e said that the principle that the Attorney General plainly had in mind was that which was laid down in the Bauclaire case which I read yes- terday. It is proper to say here that the court would take juris- diction of the information on this ground ; it would not ignore the other branch of the case, although that deemed sufficient to give jurisdiction. Standing alone it might not have constituted a case, since the Attorney General must come here in protection of the great navigable river, and in protection of the property 2340 rights of the State in the bed of the river; and here he goes on and brings in these additional matters, which are matters that flow from the construction which has been attempted. The Court. Yes, but if the Canal Commissioners have not the legal power to enter into contracts of this kind, then in the ab- sence of some charge relating to the specific contract the Attor- ney General would be unsuccessful in that portion of the case, even though he succeeded in the main portion. Counsel for Complainant. That is in relation to the ulti- mate measure of relief to be granted. Of course, we say that the contract in perpetuity to this 90 foot strip is — The Court. That is another thing. That goes to the specific character of the contract. I do not remember now whether you set that up in your bill or not, that they are void because that lease is in perpetuity. Counsel for Complainant. Yes, we charge it is without limit of time and therefore void. That is the statement of the bill. The Court. I am not deciding now on any such point as that. I am not deciding on the interpretation of the contract, but simply on the broader question, and even on that broader question I will reserve my decision. Counsel for Complainant. If I catch your Honor right 2341 you are deciding that the Attorney General has the right to come in here and be heard. The Court. The Attorney General has the right to come in and be heard that these contracts are void for any reason what- soever. Counsel for Complainant. Yes. 794 The Court. But has no right to come in and be heard to argue that the work done under that contract is not proper work, nor that the interest of the state will not be properly guarded. 2342 Lyman E. Cooley, a witness for complainant, testified as follows: Direct Examination. Graduated as civil engineer, Eensselaer, Polytechnic, Troy, 1874, 1874-77 Professor Civil Engineering Northwestern University and Associate Editor Engineering News. 2342 1878, Principal Assistant Engineer constructing railway bridge C. & A. Ey. across the Mississippi Elver, Glasgow, Missouri, 1878-84, U. S. Engineer on improvement of western rivers. Eesident Engineer on improvement of Missouri at Nebraska City, Nebraska. Ditto at St. Charles, Mo. For two years General Assistant in charge of all works on Missouri Eiver from Yankton to mouth (some 13 in number). Surveys of Mississippi Elver between Cairo and Memphis. Surveys on Missouri and reduction of physical data on Missou- ri, Mississippi and other western rivers and supervision of work thereon. 2344 Nebraska City is 50 miles south of Omaha in Nebraska and 10 miles north of State line between Iowa and Mis- souri. Work was for maintenance and improvement of navigation of Missouri, maintenance of banks and regulation of stream. Surveys and physical observations of changes in river bed, vol- ume of stream and stages of water. Involving testing and using the navigation of the Missouri. 2345 First we had flat boats 70 x 16 carrying 40 to 60 tons pro- pelled by sails, cordells from the bank and sweeps. Our cor- delling was performed by a number of men walking along the river bank pulling the boat up by a long cable attached to the bow of the boat. 795 Second year we had a steamboat drawing 20 inches to 2\ feet, 56 feet long, 14 feet wide. It would tow 2 loaded barges up stream. Currents in Missouri Eiver, generally 5 to 7 miles an hour. We operated this boat in the teeth of such currents throughout the high water season of 79. 2346 We had opposite our work a current which averaged throughout the flood 8 miles an hour. We performed our navigation ourselves against that current. There were a number of boats went up the river that season. I measured the current at Wyoming bluff and ascertained the actual mean velocity for the whole cross section of 12 miles per hour. We measured it in our boats and boats passed up the river during that flood. The Nebraska City reach extended some 18 miles to the Platts- mouth reach. It was a succession of bands with good depths and interme- diate crossings between the bends of shallow depths. One bend, Copeland ^s bend, in high water spread out to 2J miles and di- vided into a number of channels in which the water was very shallow and varible in depth during the low water season. 2347 The usual rule of depth in low water was 24 to 3 feet on the crossings, but at times we had depths of 15 to 20 inches on the bars of Copeland’s bend. Missouri river bends are usually 3 or 4 miles long with inter- mediate crossing of a mile or more to the next bend. Missouri Eiver is quite unstable. These bends in high water cut the banks more or less continuously dumping their loads on the crossings which makes a very variable channel changing in depth and location. Pilots navigating it have to search out a new channel every trip. The river is very unstable, its bed and banks consist of light alluvium and sands brought down from above and easily eroded. 2348 In low water it was from 500 feet to a mile wide in some of the thin places on Copeland’s bend. In high water it was 79() Cooley, — Direct Exam. — Continued. from f of a mile to a mile and a half wide and overflowed bottom lands to a great depth. 2349 Generally speaking, in the narrow places 500 feet wide, the water was deep and the current continuous from shore to shore except on the convex side where there was some shallower stationary water. Three-quarters of the width would be occupied with a rapid current. Where it spread out to a mile and a half wide the current would be very slack, but the bars filled up from the erosion of the bends. These crossings were dumps and at times the current became very swift. In low water these narrow channels became very narrow only 100 feet to 100 yards in width. The bars lay between the bends. They were very unstable and shifting both in elevation and location. In low water navigation becomes quite difficult. 2350 It seems the bar shifts and channel changes in a day or two and again persist for weeks in one locality. I have seen the bars shift and the channel change in the course of a day or two, and again they would persist for weeks in the same locality. As to the degree of the curvature or the abruptness of the change in direction in the bends, going around these bars, — in some of these bed crossings the channel would pass from one side of the river to the other two or three times in the course of a mile. It would be extremely sinuous, so that a boat had difficulty in thread- ing them, might often flank itself across the current in such a manner that it had to put out lines in order to get through, or use the boat spars for the purpose of holding it in position until it could work through; to put out a line to. some point on shore, or to an anchor at some distance, 100 to 500 yards, and work with the aid of the capstan. Sometimes to pull the boat around; other times to hold it in position. I was in Nebraska City doing this work for two years. 2351 During that period I saw navigation going on on the Mis- souri River, at that place. There were a number of boats passed up the Missouri River every season in the up river and Fort Benton trade from St. Louis. Usually made two trips from 797 the opening of the season up to August, when the water l)egan to get low, and some of those boats were very large boats, ca])able of carrying a thousand tons of freight. They made two round trips to Fort Benton, a distance of about 2,400 miles from St. Louis. The round trip would be about 4,800 miles, and there would be two such trips for the boat in that sea- son. They would carry a thousand tons of freight on four feet of water. There were four characteristic boats that were in the Mis- souri trade at the time I was on the river; the Montana, Dakota, the Wyoming and the Idaho, which were 45 to 48 feet wide, 250 to 260 feet long, — in length, and with a depth of hold of four and a half to five and a half feet, and they would run on 12 to 14 inches light and load down to four feet, and thus loaded would carry about a thousand tons of freight. 2352 There were numbers of smaller l)oats which ]>assed up and down the river while I was at Nebraska City; a characteris- tic size being from 28 to 32 feet wide, IbO feet long, with a depth of hold of three and a half to four feet, and running on eleven to twelve inches of water light, and loaded two to two and a half feet, and capable of carrying 300 tons. These boats were used largely in the upper river from Sioux City and Yankton north, and passed to and fro in their trips to St. Louis. The upper Missouri River, referring to the river above Sioux City, was habitually navigated by these smaller classes of boats throughout, the season. The large boats usually went out 2353 of commission in August. The smaller craft had 200 to 300 tons carrying capacity on two and a half feet of water. We had a survey party which was making a complete survey of the Missouri River, wlTose trips extended up to the three forks, above Fort Benton, and in the intervals of work in the field, we put in our time in reducing the data in regard to the Missouri River and other western rivers, and were familiar with the con- ditions in the extreme upper Missouri. As to conditions prevailing in the upper Missouri with respect to the depth of water, the current, and the actual navigation in the upper Missouri, — above Carroll, or at the mouth of the Milk 798 C ooleijy — Direct Exa m. — C on tin ued. River, some 250 miles from Fort Benton, the stream is a stream with a fixed stream bed, a fixed regimen, comparatively speaking, with a number of rapids which were drowned out in extreme high water, but in moderate stages of water there were velocities upon these rapids of eight to ten miles per hour, and the steam 2354 boats at times had to warp over them. They would put out a line up stream a quarter or a half mile and wind up the rapids with a steam capstan on the bow of the boats for the i3ur- pose of winding up, going up stream; down stream they would run with the current and their own ordinary power. I couldn’t say exactly from memory as to the extreme low water depths, but the depths used in this class of work were from two and a half to four feet. As to my experience in navigation on other streams, I was located in St. Charles, which is another part of the Mississippi River, for two years. I was located one winter at the Plum point reach of the Mississippi River between Cairo and Memphis, where we had the use of a small towboat, and had currents in high water of five miles per hour, to six miles per hour, and at Fort Pillow eddy, w’hich we used to run, we sometimes struck currents of twelve miles per hour. Boats tried to avail themselves coming up stream of the 2355 Fort Pillow eddy, and w^e did so, but it was regarded as a dangerous point, on account of the counter currents, and was avoided by most boats. I do not think I have ever seen an eight mile current in the Mississippi River proper below St. Louis, but in the Missouri River it was, except in connection with the Fort Pillow location. I have also examined some of the tributaries of the Missouri River, the minor tributaries, among which was the Gasconade River, which had 12 to 18 inches of water, and upon which we spent money in improvements. By ^^we” I mean the Engineering Corps of the United States. As to what sort of craft navigated the Gasconade, — there was a small steamboat that ran up to Vienna, that drew ten to twelve inches of water, and ran up on 18 inches; a boat about .14 feet wide, and perhaps 100 feet long, if I remember it, with a stern wheel. It would carry 50 to 60 tons. 799 The ten to twelve inches of water spoken of is low water 2356 and is a limit, and not an habitual stage of water. It could actually run on 12 inches, and was actually employed on 12 inches in moving out rafts and ties on flat boats, and oli rafts hound together in the river. This Gasconade Kiver comes into the Missouri Eiver at Herman, a few miles below Jefferson City and is a tributary from the south. In its width it varies greatly, 150 feet wide as I judged it at the mouth. I did not go up the river itself. I have been up the whole length of the Ohio River, and up that river in the fall of 1883 for the purpose of letting contracts for $500,000 worth of water craft, which I had designed written spec- ifications for, and stopped at all the points along the Ohio River where there were boat yards. The Ohio River at that time was not at an extreme low stage, hut I remember of going from Cincinnati to Gallipolis, Ohio, on the boat with a large complement of passengers, and one or two hundred tons of freight, when thefe was less than 30 inches of water on the bars. 2357 The Ohio River does get extremely low. I have made a particular examination of it at Louisville for water power purposes, where the flow of water was not over seven to eight thousand cubic feet of water per second. I do not know that I could not state that breadth at low water at that particular point, except as I remember it from the maps. It is very much spread out in approaching the falls of the Ohio, and the rapids. These are located just above Louisville, just op- posite and below Jeffersonville, Indiana, and Hew Albany, In- diana, on the opposite side. Below Pittsburg the river has reached as low a stage as 1,500 feet of water per second, and at times only a few inches of water, eight to ten inches of water on the ripples, in depth; and the Pittsburg coal fleet has been locked up for as much as five months waiting for a boating rise, as they call it, in order to pass down the Ohio River, and over a million tons of coal has laid in the Pittsburg harbor waiting an oppor- tunity to pass out when the water should be in the stream 2358 sufficient to float the coal fleet. In the census of 1890, when I had occasion to make some 800 Cooley, — Direct Exam. — Continued. comparisons of that kind in regard to the traffic on western riv- ers, the commerce of the Ohio Kiver and its tributaries amounted to five per cent, in ton miles of that carried by all the railroads in the United States. 2359 The smaller craft that I encountered on the Ohio Uiver were much like these smaller craft of the ]\Ussouri River, 28 to 32 feet wide, 125 to 160 feet in length, running light on about a foot of water and loading up to two and a half feet. When the extreme low water periods arrive, the big boat^ in many cases go out of commission, the larger boats used on the tributaries go into the main river, and the little boats on the smaller tributaries come into the Ohio and into the Missouri and into the Arkansas. When the low water arrives the little boats come out of the small streams and carry on the business on the big streams. There are many of these smaller streams that only have navigation in them for a few months, three or four months, like the head waters of the Tennessee, where there are five tributaries that have in low water only a few inches in depth on the bars, and yet for four or five months or three months have a good stage of water. The Government has spent considerable money in improving these little streams, so as to produce fifteen to eighteen inches of water continuously over the ripples in the interest of towboating and flatl)oating by the people, the riparian owners. 2360 The capacity in a state of nature, of a small stream which they improved to a continuous depth of fifteen inches, would be not over five or six inches upon the bars upon several of those minor streams, like Hiawasse, the Little Tennessee, the Hoi stern, the Clinch and French Broad, and all streams of that class in East Tennessee. They are used for carrying on a lU'ofit- able commerce. St. Charles is located upon the Missouri River about twenty- five miles from its mouth, and about twenty-five miles by rail from the City of St. Louis. The work there was of a similar character to that performed at Nebraska City, — the work of hold- ing the river bank and training the river channel, and in the in- tervals making measurements of the fiow and of the movement of the bottom of the stream and of kee])ing the records. 801 2361 When operating on the river or making a journey on the river, I hahitually took the pilot house. I have ridden, I was about to say, thousands of miles on the pilot house on the Missouri and Mississippi Rivers and upon the Ohio River. I left the Government’s service in the fall of 1884. I returned to Chicago for the purpose of engaging in sanitary engineering and for a time edited the ‘‘American Engineer,” and occupied the chair of matliematics at the Nortwestern University. In 1885 I found myself along with Dr. Frank Riley, Assistant Secretary of the State Board of Health, and Mr. Ossian Guthrie, a citizen of Chicago, who came here in 1847, and had lived adjacent to the Mud Lake region and the Desplaines Valley all his life, upon a sub-committee of the Citizen’s Association of Chicago, charged with the duty of preparing a solution of the drainage question for the City of Chicago. In August, 1885, occurred a phenomenal rain of six inches in 24 hours, the greatest in the history — the greatest on record in the history of Chicago; which sent all the contents of our 2362 rivers and slips into the lake and greatly concerned the peo- ple and brought to a head the solution of the sanitary ques- tion. We made a report to the Citizen’s Association, which was adopted. We examined the Chicago River, and all the flood ter- ritory, and the Desplaines River and the regions of overflow by which the waters came to the Chicago River ; in fact covered that stream from Lake County to Joliet at that time. This was in 1885. In 1886 and 1887 I was principal assistant of the Drainage and "Water Supply Commission which is charged with the duty of making the oflicial investigation, for the Citv of Chicago, and in 1888 I was connected with the State Board of Health as consult- ing engineer with the same duty. In 1888 I was consulting engi- neer of the joint committee of the Legislature and the Mayor of Chicago, which was appointed to draft a law, the Sanitary Dis- trict Law, and had charge of that legislation at Springfield dur- ing the session of 1889. That is the year that this act creating the Sanitary Dis- 2363 trict of Chicago was adopted, and later, after the passage of the law, was engineer for the petitioners, for the Sanitary 802 Cooley, — Direct Exam. — Continued. District, and also for the Commission that determined the boun- daries of the District, and was then the first chief engineer of the Sanitary District during the year 1890, and from 1891 to 1895 I was a trustee of the Sanitary District, chairman of the engi- neering committee; and in the year 1897 I was consulting engineer of the Sanitary District, and in the interval was again consulting engineer of the State Board of Health upon general sanitary questions. And I was further connected with the district as a mem- ber of the committee upon a comprehensive plan for the comple- tion of the works of the Sanitary District in 1901. We had an Intercepting Sewer Commission here in this city in 1897. That was under Mayor Swift, and I was a member oT the Intercepting Sewer Commission which planned the system of intercepting sewers which is now nearing completion by the City of Chicago. In 1895 I was appointed upon the first international deep waterway commission by President Cleveland, which was a joinf commission of the United States and Canada, and was the 2364 engineering member of the American Section and prepared the report which was submitted to Congress in 1897 by Pres- ident Cleveland in a special message. Then Congress followed the matter up by appropriating $600,000 for the purpose of ascer- taining the cost of thirty feet of water from the Atlantic Ocean into the Great Lakes, Chicago and Duluth, as projected by the first international commission, and I made the economic investiga- tion for that board of engineers that had that investigation in charge in reference to the effect upon the freight movement in this country and in British North America, of making the lakes an arm of the sea ; and made also a very full study of the freight pro- ducing resources of the two countries and of the rate question as between water and rail. In the fall of 1897 in company with a number of contractors, I visited the routes for an isthmian canal at Panama and Nicarau- gua and spent nearly a year in preparing plans and estimates for a contracting syndicate which contemplated undertaking the work by one of those routes. In 1898 I was the advising engineer of Governor Black ^s Com- mittee, on the investigation of the Erie Canal improvements under what was known as the Nine Million Act, and went over the entire route of the several canals of New York, some five hundred miles in length, and saw the work in all stages of development, as it was being rebuilt and rejuvenated. 2365 In 1899 I was consulting — entered the service as consulting engineer of the Union Water Company of Denver, Colo- rado, in which position I continued for four years during the build- ing of what is known as the Cheesemound Dam upon the south fork of the South Platt River near the outlet of South Park. This dam is 225 feet high, granite masonry, and within a year after its completion had 210 feet of water against it, and controlled all the water running off of 1,800 square miles. It is the highest dam in the world. In 1901 I was employed to develop the water-power proposition at the Des Moines Rapids of the Mississippi River above Keokuk, Iowa, and Hamilton, Illinois, and was connected with that proposi- tion for four years. We projected a dam 35 feet high and 7,000 feet long at the foot of the rapids, which was to drown out the entire rapids, some 12 miles in length, and set the water back to Burlington, Iowa, a distance of forty miles, and do away with the ship canal along- side the rapids, which had cost the Government since the Civil War, four and a half million dollars. The Government had built a canal to go around those rapids and connect the navigation on the Des Moines above the rapids with that below. At extreme low water the rapids were dif- ficult. 2366 Before that dam was put in, as I remember the profiles while I was working at this project, I think the low water got down to a foot and a half in the channels, but they were very crooked between the chains of rock, and very difficult to navigate at extreme low water. I wish to say in that connection that it took us about four years to remove the prejudice against the construction of such a dam, and close these rapids, and to obtain an enabling^ act from Congress. The matter is now in its final stages and will be fi- nanced as soon as the state of the market justifies it. 804 Cooley, — Direct Exam.— Continued. I have also prepared water power projects or reports, or made examinations in nine States. I have studied and made flood re- ports upon Green Eiver, Michigan, and the Genesee River in New York and upon other streams. I have performed service as an all-around engineer in nearly every branch of the profession, hut more than half my time has been given to the domain of hydraulic engineering, and particu- larly to the subject of waterways. 2367 The Internal Improvement Commission of Illinois was authorized by Act of the Legislature in 1905, and was or- ganized in 1906 for the purpose of developing primarily some proposition in regard to the Lakes-to-the-Gulf waterway, to be submitted to the Legislature of Illinois, and generally to exam- ine the streams of this State and ascertain what it was feasible to do in the way of establishing a waterway policy for the State. I was the secretary of this commission when it was organized, and prepared the report which was submitted to the Legislature in April, 1907, which is the basis of the action taken by the Legisla- ture in authorizing the constitutional amendment to be submitted to the people this fall, and also a bill upon which this suit has been brought. I am now the consulting engineer of this com- mission, the Legislature having continued the same and given it a much larger appropriation. The pamphlet which is shown me, and which the reporter marked for identification ‘‘Cooley Exhibit 1’’ (Appendix II, p. 3889; Trans., p. 5795; Abst., p. 1725) is the official print of the re- port to which I have referred. 2368 I am acquainted with the physical conditions of the Des- plaines River. I have made personal examinations from Wadsworth in Lake County to the mouth, established gauges there- on for the purpose of keeping a record of the stages of water, measured the stream at a number of points ; have made surveys and directed other surveys; in fact I think most of the surveys that have been made in regard to the stream by the Sanitary Dis- trict and the City of Chicago. In 1885 when I first began to give it systematic consideration, and in connection with the Citizen’s Committee, and later as principal assistant of the Drainage and Water Supply Commis- 805 sion, I had charge of the surveys through the Desplaines Valley, and of the records and flow measurements upon the Desplaines and other streams about Chicago. This report of the internal improvement commission of Illi- nois, and which is prefaced by a letter of transmittal dated Chi- cago, February 2, 1907, in reference to that date was officially 2369 published by the State. It was transmitted to the Legisla- ture as a printed document on April 10th, by special mes- sage of the Governor, in 1907. As to my own personal inspection and examination and travel upon the Desplaines River, — I have spoken of my connection with the work, 1885 to 1887, and I passed over during that period a part of the upper river, and all of the lower river from River- side to the mouth in a boat. I was on portions of the Desplaines River in 1885; in 1887 I passed over that portion between Joliet and the mouth in a boat, and as late as 1892 made a trip on the river down the rapids from Romeo to Joliet, or Lockport, and to the upper basin at Joliet. I had much to do with the river diversion, and determining the character to be given to that, which was based upon the data and studies which had been made under my direction. 2370 Q. You may tell us now, or tell the court, whether or not the Desplaines River from the point known as Dam No. 1 in Joliet to its mouth is or is not a navigable stream. (Thereupon counsel for defendant objected to the question on the ground that it had not been shown that the witness had any knowledge of the river in its ordinary natural condition, that the test of navigability under the Illinois decisions was the capacity of the river to carry commerce for useful pur- poses in its ordinary and natural state before any improve- 2371 ments were made, and also on the further ground that it should be limited to the time the witness was there.) Counsel for Complainant. I will accept that qualification, navigability for useful purposes of commerce at the times and places where you saw it. Thereupon the witness answered as follows: — ‘^The Desplaines 806 Cooley, — Direct Exam. — Continued. Kiver’^ is a navigable stream between Dam No. 1 Joliet and the mouth. 2372 Counsel foe Complainant. Q. Was that so when you were there and visited it and inspected itf A. It was. The ‘‘Upper Desplaines Eiver^’ refers to that portion of the stream north of Riverside or really north of the township line between Township 38 and 39, which is the prolongation of 39th Street in the City of Chicago, and the “Lower Desplaines^’ refers to the meandered portion of the stream from that point to the mouth. In the personal examinations that I made of the river I took measures to measure its flow and ascertain its depth. I re- 2373 peatedly passed over what is known as the twelve mile level that was extending from the range line at Summit to the old portage slough on Range 12 or 13 east, above Summit down to within a short distance of Lemont, which was a succession of deep pools and wide waters containing several feet of water with two points of more limited depth. I also went over the por- tion of the river in 1892 from the end of the twelve mile level down to Lockport and Joliet. 2374 I meaured the stream at Riverside at various times in 1886, and also in the flood of 1887. I established a gauge at Riverside in May, 1886. This gauge was about a half a mile " above the township line, by the course of the river, in the south- east quarter Section 36, Town 39, Range 12 East. I was upon the river in the months of August and September, 1885, and every month during 1886 and a large part of 1887. M^e had depths in the 12-mile level, and there was a record made of those depths. The record was kept on the Riverside gauge. 2375 and printed in the report of the board of engineers for 1905. The 12-mile level began at the range line between 12 and 13 East, north of Summit, at the old Portage Slough, at the Ogden Dam itself, and continued down to within a short distance of Lemont, and was a continuous level of water, very deep in localities, up to ten or twelve feet, and generally there was com tinuously a considerable depth. 807 And being asked — ^‘wbat was the shallowest water that yon observed in the Desplaines Eiver in the year 1885, in the channel of the river where the current was!’’ the counsel for defendant objected on the ground that they made official records, and that the better evidence is the record made at that time. 3278 Counsel for Complainant. That particular question I do not regard as important, if your Honor please. He estab- lished a gauge in 1886, and I was asking him with reference to 1885 because as I understand that that was prior to the time when regular gauge records began to be kept. That is the only reason why I asked that particular question, and I do not know whether those particular depths in 1885 were included in the pub- lished records or not. The Court. Was it, Mr. Cooley! 2379 The Witness. It was recorded on the maps, showing the lower water for the twelve mile level and on the profile; if I remember it was about eighteen inches at extreme low water. In 1887 I was over portions of the Desplaines Eiver this side of Joliet, and made a particular trip over the river from Joliet to the mouth and further down the stream. 2380 In 1886 I was over the river at Eiverside, Desplaines, Wadsworth, in Lake County, at Joliet repeatedly, where we had measuring or gauging stations, and also on the west fork where we had a gauging station for the purpose of gauging the flow that came over the Chicago divide. There were gauges also aside from those which were established by- myself and the Sani- tary District. I established a gauge at Wadsworth, Lake County, Desplaines, in Cook County, at Eiverside, Willow Springs, at Lemont, at Joliet, and at Morris, Illinois, and made particular investigations at all those points in regard to flood heights, and other data respecting the streams. Eef erring to House Document No. 263, 59th Congress, first ses- sion, also referred to as report of the engineer corps, published in 1905; referring to the records of gauge readings, which 2381 are assembled in that volume between pages 480 and 520, some 40 pages of fine print figures. Directing my attention 808 Cooley, — Direct Exam. — Continued. first, to the gauge which in that report and compilation is num- bered 47, the report of which appears on page 480. The heading is ^^47 gauge one-quarter mile above mouth of Kankakee River;’’ the heading above that being Gauge readings, Illinois and Des- plaines Rivers.” I am acquainted with that gauge on the Des- plaines River a quarter of a mile above the mouth of the Kan- kakee. It was established in 1883 by the Benyuard Survey, a sur- vey made under the direction of Major W. H. H. Benyuard, in pursuance of an act of Congress in 1883, and reported in 1884. That survey covered the Desplaines 'and Illinois Rivers from Dam No. 1 at Joliet to LaSalle, and established a number of gauges along the Desplaines and Illinois Rivers, for the purpose of determining the stage of water, referring his soundings, and as- certaining the low water line. The low water line was established from the record kept at those gauges during this survey, and from intermediate levels and all the soundings made in the river bed were referred 2382 to this low water line, and it has been the standard in all surveys made since 1883. The gauge referred to on page 481 of the publication, called 48, Gauge at Kankakee Feeder Aqueduct,” was a gauge estab- lished after the opening of the Sanitary Canal by the Sanitary District, as I remember it. This 1883 gauge, then, was there, and all of the 1883 gauges were in place. when I was making my examinations in 1885, 1886 and 1887. 2383 The record appears here as to the 1883 gauge, that the readings were taken from July 29, 1883, to November 3, 1883, page 480, the gauge that was called No. 49 appearing on page 482 of this Government document. The gauge at the Kan- kakee cut-off I think was established in the last survey by the Barlow board. As to gauge No. 50, as it is designated in this com- pilation, ‘'Gauge three-cpiarters of a mile below the mouth of the DuPage River.” I know that there is a gauge there and a record kept there. No. 51, appearing on pages 484 and 485, “U. S. Gauge at mouth of Jackson Creek,” was a gauge established there by the United States, and I believe also by the Sanitary District at the same point, or near the same point. 809 The gauge, the record of which appears on page 486 of the publication as No. 52, ''Chicago Sanitary District Gauge at the mouth of Jackson Creek,’’ is the one, the associate gauge to which I refer. 2384 The report of that appears on pages 486 and 487. The gauge which I reported on page 488, "Gauge at the foot of Treat’s Island, temporary gauge established July 29, 1883, by the United States Engineer Department,” was one established in the Benyuard survey and used for the purpose of determining stand- ard low water. I was acquainted with that gauge, the gauge recorded on page 489, which is No. 54, at the head of Treat’s Island, the temporary gauge established July 29, 1883, by the United States Engineer Department; I am acquainted with that gauge. Counsel for Defendant. You mean when you say that you are acquainted with it, that you are acquainted with the record of it, or were you there at the time the gauge was made? The Witness. I refer to the record of the gauge; the gauge was only a temporary gauge as it is spoke of there. Counsel for Defendant. Then the record shows all you know on the subject, does it? The Witness. Yes, sir, and the report of 1883. Counsel for Complainant. Take the gauge which is recorded here on page 490, Joliet gauge below Adam’s Dam, established by the United States Engineer Department in 1883. Are you acquainted with that gauge? 2385 Counsel for Defendant. I object to any further ques tions along that line. Mr. Cooley says his acquaintance with the gauges is simply what is shown in this record, which Mr. Starr has before him, and a great many things are in the record that Mr. Cooley cannot testify to personally. Thereupon counsel for complainant offered in evidence at this point from House Document 263, 59th Congress, First Session, the tabulated reports occupying the 41 pages from page 480 to 2386 520 inclusive. (App. II, p. 3890; Trans., p. 5836; Abst., p. 1725.) As to the other surveys, gauge readings and records, which 810 Cooley, — Direct Exam. — Continued. have been made, aside from those which are assembled in this house document by the Barlow Board, I have made a pretty thorough search and the document substantially covers the record from 1883 to 1904, inclusive. There is a further record coming down to date, made by the Sanitary District. Profiles of these readings occupying these pages of the Government publication were made by the Government engineers. They set forth all their data fully upon their maps and profiles, or rather the results of it. I wish to say that I have personally examined all the original maps and profiles from 1867 down, and had copies of them made at vari- ous times in connection with my work on the Sanitary District and the State Board of Health. The eight documents headed respectively one for each year, ^‘Sanitary District of Chicago, Tabulations for the years 1900, 1901, 1902, 1903, 1904, 1905, 1906 and 1907, of the Average Daily and Weekly Bate of Flow in cubic feet per minute,’’ omitting the items of the I. & M. Canal — ^‘through the main drainage canal, through the Chicago Eiver, through the Desplaines Eiver at Eiverside, through 'the Desplaines Eiver at Joliet,” are 2387 the records of the Sanitary District tabulations to which I have referred. They were kept in the regular course of busi- ness by the Sanitary District in order to make known and record the flow in the Desplaines Eiver and in the Sanitary Canal, and in the Illinois and Michigan Canal. (App. II, 3892-3899; Trans., pp. 5863-94; Abst., pp. 1729-30.) 2388 As to how many Government surveys and reports there have been made upon this river since the year 1867, the sev- eral reports and surveys and examinations by the United States and State authorities number nine, since the opening of the Illi- nois and Michigan Canal in 1848. The first one was by John D. Preston in 1858, which was a State examination. 2389 As to Mr. Preston’s report, I know there was such a re- port made, and the State of Illinois, by the records, paid $20,000 for Mr. Preston’s material to turn over to the Board of Kngineers in 1867, and that that material was the basis of the re- port of 1867, by James H.— Garrett A. Wilson and William Gooding, and is so stated in their report. The second report T have mentioned, the one of 1867, explaining about Mr. Preston’s 811 report. The third report was in 1874 by Col. J. W. McCbmb, re- ported in 1875, relating to the Northern transportation route to the seaboard, covering the Desplaines and upper Illinois 2390 Bivers. The fourth report of the Benyuard survey, made in 1883, and reported in 1884, covering the river from Dam No. 1 to La Salle. The fifth report was the report of the Com- stock Board, which was appointed to review the relative availa- bility of the several projects, and particularly that proposed use of the canal and of the river over this same region, that was in 1886-7. The sixth report was a profile map and project made in 1892 and 1894 under my personal direction and submitted to the legislature in 1895. The next report was the report of the Ernst Board submitted in 1905, known as House Document 263, for a deep waterway. The next is the report of the Improvement Asso- ciation of Illinois, sent to the Geenral Assembly on April 2391 10, 1907. There was also a report by Major Long, made in 1816, — of a survey made in 1816, and reported in 1817. There was also four other reports dealing with the river, one by Captain W. L. Marshall, on examinations made in 1889, and submitted in 1890. A preliminary report under further acts of Congress, by Captain Marshall, in 1897. A report of the Barlow Board in 1900, and also a second report of the Barlow Board upon the proposi- tion for a fourteen foot waterway. When I use the name Barlow Board I refer to a board of engineers appointed by the secretary of war under the authority of Congress, and the Barlow Boarrl refers to the chairman. And so with the Comstock Board and Comstock report, that refers to a board of LTnited States en- gineers of which General Comstock was chairman, the Ernst Board was the last one to report, ahd that refers to a board of which General 0. H. Ernst was chairman. That Ernst report is House Document No. 263 of the 59th Congress, First Ses- sion. 2392 The document which is shown me, marked Cooley Exhibit 2, I labeled ^^The Desplaines Kiver below Joliet, November, 1907,” and scales appear below, and various legends. (Exhibiting document to the witness.) (Atlas, p. 3944; Trans., p. 6557; Abst., p. 1923) is a map accompanied by a profile of the Desplaines Biver between the end of the Sanitary 812 C ooley, — Direct Exam. — Co7itimied. Canal at the power station, Loekport, arid a point on the Illinois Eiver, about two and a half miles below the mouth of the Desplaines Eiver. This map was prepared under my direction and designed to illustrate the conditions existing between the points named, and on a scale of approximately one inch to the mile, shows the course of the river, the course of tributaries join- ing the river, the location of the Illinois and Michigan Canal, the topography adjacent to the stream, and the geographical points in the territory delineated. The legend here is, '‘Compiled from the latest surveys by Edgar Williams,” signed L. E. Cooley. Edgar MTlliams is an assistant in my office, employed through me by the Internal Improvement Commission. The platting and draft- 2393 ing and drawing of the lines was done by him under my direction or supervision. This is a correct representation of what it purports to represent, a method among engineers of mak- ing graphic representations of these contents of the gauge read- ings which appear in these voluminous records. One of the pur- poses of gauge records and making profiles of the river is to de- temiine flow lines which indicate the stages corresponding to the different volumes of water. To make a graphic representation of these different stages of water, they can be drawn in any detail required, but the flow lines corresponding to different volumes of water are drawn with some parallelism dependent upon the phy- sical elements of the low water line. As to being an accepted and regular method of depicting bodies and stages of water from gauge readings among hydraulic en- gineers, it is the only method by which a general situation can be obtained, and it is an approved and accepted method among hy- draulic engineers. The document now shown me, marked for convenience and iden- tification Cooley Exhibit 3 (Atlas, p. 3945; Trans., p. 6559; 2394 Abst., p. 1923), is such a graphic representation of the gauge readings which I have referred to, and which have been men- tioned in the questions and answers, and represents not only the inteiq)retation of the gauge records, but substantially all our in- formation, includes the river bed along the channel line, the pro- files of water surfaces at the several stages by which these gauges are kept up. That was prepared jointly by Mr. 'Williams and my- 818 self. In connection with this profile we have consulted every rec- ord that has been made that was accessible, and all the profiles that have been jjlatted in connection with the river. 2395 That includes all of these volumes of gauge readings and reports and profiles and gauges and maps to which I have re- ferred. It truly and correctly depicts these gauge readings ac- cording to the accepted method of depicting them by hydraulic engineers. Thereupon counsel for complainant offered in evidence the said maps. Counsel for defendant objected to the same on the ground that they were based upon records not in evidence. 2396 The Coukt. Well, if they are all here we can pass on that question later. I will pass on that later. I will over- rule it at this time. Said maps were then received in evidence, marked ‘^Cooley Exhibit 2” and ‘^Cooley Exhibit 3”) (Atlas, pp. 3944 and 3945; Trans., pp. 6557-8; Abst., p. 1923). And the witness further testified : 2399 As to how many pages of figures, gauge readings and sim- ilar matter I have consulted in the preparation of this pro- file, — the tabulations that have been gone into and actually used in this connection amount to two or three hundred pages, aside from the maps and profiles of the surveys that have been made since 1867. The number of maps and profiles I have consulted and made use of in compiling this profile were eight or ten. 2401 That bottom line shown on the plat is the low water line of 1883. It is so marked and it is correct. That is as Cap- tain Marshall put it. We had the profile of 1867 and the profile of 1874. The profiles and soundings are not made with the detail which is necessary in order to plat a profile of this character, and furth- ermore, the datums to which those surveys were made are 2402 difficult to compare with the last surveys, so that we did not attempt to use any profile of 1867 or 1874 except in the way of a general comparison. The river has been changed in its water supply ever since the Illinois and Michigan Canal, in 1848. Conditions have been con- stantly changing. 814 C 0 oley, — T) i red E xa m . — Co ntin iied. 2403 There is a profile of 1867, and one of 1874. The height of dam 72 minus, crest of dam 75 minus. Economy Light & Power Company plant is put on the map from the sheet furnish- ed by the Economy Light & Power Company itself. 2404 I have made such profiles as are here shown, not with the same detail or accuracy because we did not have the data at that time, in conjunction with the legislative sessions of 1887 and 1889, because it was necessary to exhibit before the people the probable etfect of volumes of water contributed to the Desplaines and Illinois Elvers, and this is not a new thing but has been a subject matter of continual delineation for various purposes since the inception of the drainage canal. 2406 The low water of 1883 was established in the Benyuard survey and is described in the report of the Chief of En- gineers, U. S. A., 1884, part three, page 1960. The zeros of all these gauges were connected with each other, and also with all the high and low water marks to be found in the valley. 2408 Near the extreme northeast point shown here is Dam No. 1 and so labeled. Near the extreme left hand or south- westerly limit is labeled ^‘E. J. & E. Ey. Bridge,’’ about two and a half miles below the confluence of the Kankakee. The entire reach of the river between those points is shown. The pro- 2409 file follows the line of the river from Dam No. 1 down to the L. J. & E. Eailway bridge two and a half miles below the confluence of the Kankakee and Desplaines and shows the depth of said channel clear through below the water line of 1883 which has been taken as standard in all surveys. It is drawn to a scale of 2,000 feet to one inch horizontal and ten feet to one inch ver- tical. It is customary to exaggerate the vertical scale sufficient to visualize the slopes and declivities. On the bottom of the 2410 label, ‘^From Power Station Miles,” and then a row of fig- ures, 3, 4, 5, running down to 20, down below — a little below the Dresden Island head, the distances are given from the power station of the Sanitary District at the end of the Sanitary Channel below Lockport, both in feet and in miles down stream. These vertical lines that cross the profile about half an inch apart rep- resent thousand feet distances. Then you have horizontal lines drawn across the profile from left to right with the label on the 815 left end, ‘'Feet below Chicago datum,” and these vertical lines beginning at the top are labeled 30, 40, 50, 60, 70, 80, 90, 100 and 110. Those are elevations below the level of Chicago datum. Then a number of lines here labeled respectively 2,000 second feet, 4,000, 6,000, 8,000, 10,000 and 13,000 feet. The volume is 2411 expressed in cubic feet of water per second of time, and these several lines represent the profile of the water sur- face as it would be and is at the volume expressed upon the line, which is when that amount of water is passing. It is an inter- pretation of all the information that we have upon the relation of stages of water and of the volume passing. The line above all of them which is labeled “H. W. 1892” was the high water line of 1892. That is the line that is entered upon the profile of the report of the Board of 1905. It is also entered upon the profiles made by the Sanitary District. The water has at times been up to each of these ditferent lines, including the top one. High Water, 1892. For instance, here is a line labeled “13,000 second 2412 feet;” the water in the Desplaines River amounted to 13,000 second feet in 1892 and 1904. Both high waters were very nearly at the same elevation as shown by the 1892 line and cor- respond to volumes of twenty- five to thirty thousand second feet, I donT remember the exact amount. We have here crossing the profile a blue band which has the 4,000 second feet just below it and the line 6,000 second feet just above it, and the space between the two lines is colored with a solid blue band. The blue band represents the characteristic low water stage and its variations which have prevailed since January, 1900. That is the time when the water of the Sanitary District was turned into the Desplaines River. There is one line among others which we used in check- ing these flood lines, low water lines as shown upon the profile of the last survey reported in 1905. That line corresponds to 4,400 second feet and is indicated on the profile as the lowest water of the survey and is above the lower limit of the blue band. 2413 That is, the 4,400 feet line would be a little above the 4,000 feet line. We did not draw any profiles of different sur- veys upon this map, but simply put the regular lines across so as not to confuse the profile. It would have confused the pro- file to have attempted to put them all in. There is such a thing as getting so many lines on that they would confuse each other. 816 Cooley, — Bii ect Exa m . — Con tinii ed. Above all these lines are various distinguishing labels, like Eock Run, Brandon Bridge, Cedar Creek, Head of TreaCs Island, and so forth. Those represent geographical points along the course of the river and opposite the points on the profile designated. For instance, here we have a vertical line near the middle of the pro- file of the canal, and upon the vertical line are the words ‘‘Foot of Treat’s Island.” Look at the bottom of the map and the pro- file, then the figure 12, and then this line; that is, this level is just 1,000 feet to the left of that 12. That is the position upon the channel profile of the foot of Treat’s Island. It is 12 miles 2414 plus 1,000 feet below the power station. It is geographically correct, and so are the other geographical indications. Now taking the line which is illustrative near the center of the map, the profile, the bottom of the river as indicated here occurs between the horizontal line marked 90 and- the horizontal line marked 80. These 90 and 80 respectively mean 90 and 80 feet below Chicago datum; and the body apparently of water, painted blue, between the bottom of the river and the low water mark of the river, is just a quarter of an inch high at that point. A quar- ter of an inch on that scale would mean two and a half feet; that would mean that the low water mark of 1883, at that point — the water was two and a half feet deep. At that same point the line labeled 4,000 second feet is just half an inch above the bottom of the river. That would signify that with a volume of 4,000 2415 feet of water passing that point the depth would be five feet. Down here at a place near the left hand end, labeled “Economy Light and Power Co. Plant” and a vertical line drawn there, that represents the site of the dam. Just a little to the west of the 18-mile line, the 4,000 feet stage at a slight elevation at the bottom here, is 6/16 or 3/8 of an inch away from the line marked “Low water line.” That indi- cates a difference in the elevation of 3.75 feet, — three and three- fourths feet in depth; and the 6,000 foot line at that point, which is a rather strong half inch, would indicate a depth of five feet. In the stretch of the Desplaines River shown by this profile, the shallowest depth of water at the low water mark in 1883,— 2416 the point of least depth on this profile is within 100 yards up stream from the site of the dam of the Economy Light & 817 Power Company. The indicated depth at that shallowest point is not far from eighteen inches. I would state the depth of water at that place since the Sanitary District water has been turned 2417 in, as shown on this profile — it is an engineer \s scale — to be 2418 fifteen inches. I think a fair interpretation of those lines as draftsmen draw lines, the center line of course, and no clearances in between, make about aii eighth of an inch. Using this scale I have here, the depth at the 4,000 foot line above that little jut that is just at the right of the dam, is slightly in excess of three feet; and at the 6,000 foot line, in excess of four feet. Now, toward the end of the map, the northeast end, we have got Hickory Creek represented, and there seems to be a place, per- haps 1,200 feet to the left of Hickory Creek, just below Hickory Creek, where a little nubbin in the bottom sticks up, which I should say is from 16 to 18 inches. Those represent the shallowest places in this reach of 2419 the river from Dam No, 1 to the mouth of the river, propor- tionately the length of the channel through which those shal- low spots extend; and the balance of the river in depth, I think there are depths running about twenty feet on that profile, and dowm to these minimums wdiich have been stated, which are for very TTmifed distances. The shallow spot just below — about a thousand to fifteen hundred feet below the label ‘‘DuPage Kiver,” is the bar formed by the deposit from the DuPage River, and the depth there is about twenty inches. The depth there since the turning in of the Sanitary District water is from slightly under five feet to something over six and a half. Dam No. 1 is represented here near the right edge of the 2420 profile and the bed of the river is indicated as coming be- tween the lines 50 and 60, three-quarters of an inch down from 50 and one-quarter of an inch above 60. The height of the river as indicated at that point on the. profile — the figure as stated would be 574 feet below Chicago datum. And the bottom of the river at the other end of the profile where the site of the dam is marked coming between the lines 90 and 100 apparently about 9/16 of an inch below the line marked 90, the elevation of the bed of the river at that point is about 95.6 feet below Chicago datum. The difference between 57U the bed of the river and Dam No. 1, 818 Cooley, — Direct Exam. — Continued. and 95.6, the bed of the river at the proposed dam, would give the fall in the bed of the river between those two points; that would be 38.1, I think; that would be the fall in the bed of the stream between the points named. Dam No. 1 is shown a little to the right, or northeast of the three-mile point, about 1,500 2421 feet up stream. The proposed new dam is marked as a little to the left or west of the eighteen-mile point. Those two points are 15.6 miles apart. Then there would be a fall of 38.1 in 15.6 miles, or in round numbers 2^ feet to the mile as an 2422 average. These lines here across, with the second feet level and low water and high water levels indicate totals of waters in the river itself. I am acquainted with the dimensions of the Sanitary District Channel. The channel in the Rock Cut for something less than seventeen miles between Willow Springs and the terminus at Lock- port has a bottom width of 160 feet and width at water line of 162 feet, and depth when running to its full capacity of 24 feet at standard low water of Lake Michigan, when filled. By full ca- pacity, I mean 14,000 cubic feet of water per second, for which the Sanitary Canal is designed. It never has run that much, unless pos- sibly in an endeavor to get rid of some flood water out of Chi- cago. 2423 As to the normal and ordinary flow in the Sanitary Dis- trict Channel at this time and since it was opened in 1900, the channel was opened on the basis of 5,000 cubic feet of water per second, but was limited by regulation of the War Department to 4,200 cubic feet of water per second during the season of nav- igation in the Chicago River. In the closed season it has been operated for 5,000 feet to 6,000 cubic feet of water per second. The closed season of navigation on the Chicago River is that in which lake boats do not traverse the lakes and averages about four months. That would be the winter months, some time in December to the time that the Straits of Mackinaw open, some time in April. And during that period it runs say up to 6,000 cubic feet of water per minute. The Government limit has not been applied. But when the navigation season is open on the Chicago River, 819 then it is under the Government regulation and the discharge is limited to 4,200 feet per second. The Court. (Addressing Mr. Starr) You said per min- ute. 2424 Counsel for Complainant. Yes, I guess I did. It would be sixty times that. The Court. Q. You mean per second! A. Yes, 252,000 cubic feet per minute that would be. The Witness. The earth cut is designed with a width of 202 feet wide on the bottom and 300 feet at the water line, with the same depth of water, and is something more than thirteen miles long from Willow Springs to a junction with the west fork of the south branch .at Eobey street in the City of Chicago. (Indicating on map) This graded part here is all rock cut. and this part is earth (indicating), and a little rock in here in between at Summit. I established a gauge at Eiverside in May, 1886, as I recall it. A continuous record has been maintained ever since on this gauge, with the exception of the years 1890 and 1891. 2425 The catchment area of the Desplaines basin is 633 square miles. That is the basin above the gauge at Eiverside. The catchment area of the lower Desplaines basin from that point to its mouth is about 720 miles additional, as I recall it. The catchment area is the watershed or gathering ground from which the waters flow which the river has to drain. The average rainfall in this district is 33.9 inches per annum. That is taken from the Government record from 1843 to 1907 in- clusive, a period of 65 years. The average is 33.9 inches. 2426 1881 was the great and characteristic flood, which we have been able to assign and study most closely. The volume of water in the Desplaines Elver at the time of that flood was 13,500 cubic feet of water per second. The date when the water reached that amount was in April. The exact date I do not recall. I in- vestigated that flood and had a continuous profile made of it from up at Feehanville dowm to Eiverside, and further down the stream, I think, to the mouth, as I recall I had a number of 820 Cooley, — Direct Exam. — Contin ued. marks above the Eiverside dam by which I could estimate the depth flowing over the dam. I had marks further down the stream which I could refer to the gauge as established there, and after we had made up the rating curve for the Eiverside gauge we assigned a volume to that flood which checked very closely with the compu- tations which we made by means of the depth on the crest of the dam. Taking the 22 years inclusive since that gauge was estab- lished, — the gauge is in charge of the Sanitary District of 2427 Chicago, and the record is published in the report of the Board of Engineers for 1905j House document 263, to which reference has been made, contains the record down to the end of 1904. What is compiled in the Government report is taken from the records of the Sanitary District. I have classified or assembled the data of these stages of water shown in the Desplaines Elver by the Eiverside gauge. I have tabulated for 19 full years since 1887 the number of days at which the gauge at Eiverside has stood at or above a certain elevation. The first of these is 18 feet, one inch, or 18 feet above Chicago datum corresponds to a volume of 4,500 second feet, which is a flood stage in the Desplaines Eiver, and during the 19 years the river has been at or above such flood stage for an aggregate of 73 days. This flood stage corresponds for great floods to an eleva- tion of 16 feet and upwards in the twelve mile level to the depth of in extreme flood five feet passing over the original Chi- 2428 cago divide at Kedzie avenue into the Chicago Eiver. T would say in that part of the Chicago Eiver or the south branch thereof with its two forks, where the route overflows from the time of the discovery, and that the south fork was maintained thereby — (Thereupon counsel for defendant objected upon the ground the the answers were not responsive. The CouET. He may state whether there are such histori- 2429 cal data, and what they are, I mean where they are to be found. Counsel for Defendant. Without the result of them. The Court. Yes. 821 The Witness. I can giv^ tlie kernel of what I know, but T haven’t an index on all the husks, so I am not able to state spe- cifically where this information is to be found, except that I made a study of all the data that could be ascertained some twenty years ago, and I am now stating my best recollection in regard to the conclusion reached. I stated that this elevation of 18 feet had occurred on 73 days. That represents a volume of 4,500 second feet and upwards. There were floods in that period, one which I measured particu- larly in 1887 which ran something over 10,000 feet, and 7,000 feet, of which I got measurements in the west fork of the Chicago River. 2430 An elevation of 18 feet, as recorded on the Riverside gauge as producing 4,500 second feet of water, did not all go down the Desplaines — it does in nature. It divides, a por- tion of it coming by way of the old Portage trail and swamp through the Chicago River. I have made an estimate some years ago that flood stages range from three to five feet in depth over the Chicago divide. 4,500 second feet of Itself would probably cross to a depth in the vicinity of three feet and the extreme floods to a depth as great as five feet, coming into the Chicago River. 2431 The second tabulation which I have made corresponds to an elevation of 13.8 feet upon the Riverside gauge, and to a level opposite Summit in the 12 mile level and in the Portage swamp region of 11.7 feet, and to a depth upon the original Chi- cago divide at Kedzie avenue of 15 inches, or thereabouts. At that stage of water and for the number of days a boat could pass — The zero on the Riverside gauge is, Chicago City datum, and these elevations refer to elevations of water surface as read upon that gauge above Chicago City datum. That is the top of the water ; the elevation of the bottom of the river at this River- side gauge at the extreme low water at that point is 11.4 feet above Chicago datum. That is the low water level. 2432 The bottom of the river I do not now recall. They are not the same. There is a pool there, I believe. As to the elevation of 13.8 feet on the Riverside gauge, it has prevailed in a period of 19 years on an average of 46.2 days per 822 Cooley, — Direct Exam. — Continued. year, or a total of 879 days. 13.8 feet would be about two feet of water, that gives in the Desplaines Eiver, — about 1,052 second feet. 2433 That water, under original conditions would divide, and the depth of the Chicago divide I have estimated as about fifteen inches. I mean during those 46.2 days per annum, during these nine- teen years there would be a stream 15 inches deep running into the Chicago Eiver from Desplaines. The next class into which I have tabulated these gauges, — I have tabulated for the time at which the water has prevailed at an elevation of 13 feet or more upon the Eiverside gauge, said elevation corresponding to a volume of 600 second feet, and cor- responding also to an elevation of about 104 feet, in the twelve- mile level, and Portage swamp, or the elevation as nearly as can be determined of the original divide at Kedzie avenue. 2434 That stage of water has prevailed for 1,329 days, or an average of 70.4 days per year. The entire body of water in the Desplaines Eiver at that elevation would go down the river, — in the absence of the artificial interferences that have oc- curred since, — except such as may have passed through the nar- row drain mentioned by Major Long as being cut below the level of the divide. The third classification which I have made corresponds to an elevation of 12.4 feet, upon the Eiverside gauge ; or above, and this is the equivalent of 305 second feet on the Eiverside gauge, or at the Eiverside gauge, and of an elevation of 9.6 feet in the 12 mile level. The river was at or above this gauge in 19 years for 2,028 days, or an average of 106.7 days per year. The average rainfall during these 19 years from the Govern- ment reports is 30.75 inches or a deficiency of 3.15 inches 2435 per annum during 19 years. I mean that this period of 19 years in which I have tabulated the report in this way, that the annual rain fall is 3.15 less inches per annum than the fall for the entire period that you have given. This was a period of excep- tional draught. -The range during that 19 years was 24 inches and 37 inches, I think. 823 I have summarized this tabulation all together on one sheet that I have been testifying about. Thereupon counsel for complainant offered in evidence this tab- ulation. (See infra, Trans., p. 4174; Abst., p. 1207.) 2436 The depth of water at an elevation of 13 feet on River- side gauge which would all go down the Desplaines River, except that which would run through the narrow trench referred to in the report of Major Long would be 34 feet deep in shoalest places in the 12 mile level, and in the fourth classification at an elevation of 12.4 feet, the depth of water in those places would be about 24 feet. 2437 (Thereupon objection was made by counsel for defense to the admission of the tabulations in evidence.) 2439 The Couet. I do not doubt it is competent testimony, that is, the summary is competent testimony, but I doubt the right of counsel to offer the summary without the original, where the original is available and the other side objects. The extreme low water level recorded on Riverside gauge 2440 was 11.4 feet. The extreme low water level in the 12 mile level was 8 feet above Chicago datum. That would be about 8 inches at the minimum places in the river. Q. You have spoken of interferences, artificial constructions and obstructions as having interfered with the conditions of 2441 the Desplaines River and the Chicago Divide during these 19 years; you may state whether or not, from your experience and observation as an engineer, you are able to tell us, whether in a state of nature, before there were any such interferences, obstructions and disturbances, how the amount of water there flowing compared with the amount shown under these interfer- ences in 19 recorded years. (Thereupon the counsel for defense objected upon the ground that the defendant had no personal knowledge as to the condition of the river before 1848, the court ruling that he might answer it if he could.) 2442 Q. How would the stage of water in a state of nature 824 Cooley, — Direct Exa m . — C out in ued. prior to these artificial obstructions and interferences, compare with the stage of water in the 19 recorded years? (Objected to; sustained.) Q. Xow I ask yon to tell ns what the artificial interferences and obstructions are to which yon have referred? A. The first was the construction of the Illinois and Michi- 2448 gan Canal, opened in 1848 from the junction of the two forks of the south branch at Bridgeport, southwesterly across the southern a nil of Portage swamp to Summit, thence along the left side of the valley to Joliet. The second interference was the cutting of the Chicago divide in the vicinity of Kedzie avenue in 1852 by the Cook County Drain- age Commissioners. They cut a channel from Mud Lake, some- times called Portage Lake, La Petit Lac, across the divide from the vicinity of California avenue to the vicinity of Western ave- nue, which enlarged until it became the present west fork and extended into the Mud Lake region. The third change was the ditching of the Portage swamp re- gion by Nickerson, Ogden and Wentworth ditch to the old Port- age slough at the range line between ranges 12 and 13 east, on or about 1871. Fourth, between 1866 and 1871 the Illinois and Michigan Canal was deepened according to the original plans for the construction of said canal, so that its summit levef was at the level of the Chi- cago Kiver and Lake Michigan. 2444 Fifth. In 1876 and 1877 the City of Chicago constructed at the head of the Ogden ditch, and across the Portage slough on the range line between 12 and 13 north of Summit, the Ogden- Wentworth Dam. Sixth. The diversion of the waters in the Desplaines both be- fore ajid after deepening by the Illinois and Michigan Canal. Seventh. The construction of the river diversion in 1892 to 1894, by the Sanitary District of Chicago. Eighth. The construction of the Sanitary Canal, opened in January, 1900, and that general occupation, inhabitation, tillage and reclamation of soil would be considered such an interference and that that would make nine. 2445 The effect of the Illinois and Michigan Canal, which was 825 cut through from Summit to Bridgeport across the arm of Portage Lake, was to intercept so mucli of the watershed as 2446 ]ay south of the Illinois and Michigan Canal and was trib- utary to Portage Lake and thence to the Desplaines Eiver and also so much of the reservoir of the Portage Swamp as lay south of the location of that canal and tended to equalize the flow in the Desplaines River. What I mean hy the reservoir of the Portage Swamp, the wa- ters from the Upper Desplaines and from the watershed trib- utary to the 12-mile level and Portage Swamp in times of high water flooded these lakes and marshes and streams to a consider- able depth which had a very large ameliorating effect in mitigat- ing floods and in prolonging the stage of water. The Illinois and Michigan Canal diminished the proper water- shed of the Desplaines River and to that extent absolutely dimin- ished a volume tributary to it. In addition to the canal, the State of Illinois constructed a big drain called the State Ditch, by way of Brighton to the South 2447 Fork, for the purpose of draining the area which had been intercepted south of the Illinois and Michigan Canal. The effect of the State Ditch as a part of the canal system going through Mud Lake u])on the amount of water flowing into and down the Desplaines River was that it was diminished hy whatever water came from the territory which has been thus in- tercepted by the Illinois and Michigan Canal. As to the ditch cut by the Cook County Drainage Commission- ers in 1852, that ditch was from the West Pork, in the vicinity of the present site of the bridewell over to Mud Lake at about California Avenue, half a mile west of Kedzie Avenue. The original ditch was a very small affair, four feet wide and three feet deep, but in the course of two seasons they enlarged its width to forty feet and cut it down to the level of the lake. The divide at that point was about ten or twelve feet above the low water level of Lake Michigan. 2448 As to the Ogden-Wentworth-Nickerson Ditch, there were several operations in that region; one known as the Nick- erson ditch and the other the Ogden-Wentworth Ditch, which were 82G Cool ey, — D irect Exam. — Con tinue d . designed to drain off the Portage Lake territory and Portage Swamp laying north of the canal and east of the range line at Summit. One of these ditches, the Ogden-Wentworth ditch, was carried to the range line, to the Portage Slough, and broke through finally, in 1871, through into the Desplaines Eiver, and all the water with some interruptions, up to the time of the 2419 construction of the Ogden-Wentworth Dam in 1876-7, came to the Chicago Eiver, that is, for a period of between five and six years, the Desplaines Eiver substantially stopped flowing southwest and ran east into the Chicago Eiver. There were some efforts made to check this by the Commissioners of the Illinois and Michigan Canal, but the works constructed were not success- ful and the ice interests along the 12-mile level — they were a number of ice houses that utilized the pools of the Desplaines Eiver along the 12-mile level for ice fields. When it turned east and ran into the Chicago Eiver, it tended to drain away the waters of their fields, the lower level. At the approach of winter they constructed temporary dams of brush and stone for the purpose of diverting the water down there, which were promptly washed out in the succeeding spring, that is, they would prevent the Desplaines Eiver temporarily from running into the Chiago Eiver and hold it within its southwesterly course, and in the high water in the spring, those temporary dams would again be destroy/ed and the Chicago Eiver would again run through the Ogden-Went- worth Ditch, and would run down to the south of Joliet. It 2450 was a subject of complaint during those years by the peo- ple of Chicago and by the Illinois and Michigan Canal Com- missioners that by the bringing in of a great quantity of detritus, they were alleged to have filled up and checked the flow through the Illinois and Michigan Canal. The City of Chicago built a substantial dam across the old Portage Slough on the range line in the winter of 1876-7. That is known as the Ogden-AVent worth Dam, and they fixed the elevation of this dam at 11.73 feet above Chicago datum, by> or as nearly as might be, at the height of the natural bank of the Chicago Eiver in that vicinity, by some arrangement with the people who were interested in the drainage of lands in that vi- cinity. This dam did not attempt to control any flood height 827 above the level of the bank. In 1887 I estimated the capacity of the river in the 12-mile level, when the water stood at the level of this dam, and depending upon the season of the year, it varied from 800 to 1,000 cubic yards. The dam was, however, not fully etfective, even for the stages of water for which it was designed, and the waters ran around and through it; usually in the fall of the year, in low water, the ice interests still would tighten it up for the purpose of controlling the flow southward. 2451 Making the flow run southward, the deep cut was the origi- nal design of the canal at lake level but it was actually car- ried out by the canal trustees with the Summit level, some eight feet above Chicago datum, supplied by water from the Desplaines E.iver, the Calumet Eiver and at times assisted by contributions from the Chicago Eiver. In 1866 to 1871 this cut was deepened so as to take a supply of water direct from the Chicago Eiver. The effect of the making of that deep cut on the flow of water in the Desplaines Eiver was that the level of the water in the canal lies at eight feet below the low water level of water in the 12- mile level and 16 feet or more below the extreme flood height, and all the way down to Eomeo the river is above the level of the canal at low stages, and it has diminished the supply of water in the riter to the extent of the percolation between — absolutely intercepted the drainage on that side and further underground percolation by reason of the different levels of two bodies so near to each other, two bodies of water. 2452 The river diversion that I had in mind in my prior testi- mony was that made by the Sanitary District in 1892 to 1894. That is what is shown by the black line connecting the green spaces on the Hillebrand exhibit. That was designed for the purpose of shifting the location of the Desplaines Eiver to the west side of the valley so as to leave the ground unencumbered by water between Illinois and Michigan Canal and this river in which to construct the Drainage Canal. A heavy embankment was built between the sides of the Drain- age Canal and adjacent to the river diversion for the purpose of restraining the floods and a spillway was constructed about six-tenths of a mile south of the township line between 38 and 39, up at about the end of the old Portage Trail where it struck 828 C 0 0 1 ey, — Di rect Exa it / . — 'C o n tinued. the 12-mile level. This spillway was of concrete, 400 feet long, at an elevation of 16.25 feet above Chicago datum and cor- 2453 responds to the 18-foot level which I have referred to as the flood level on the gauge at Kiverside, that is shown on the Hillebrand exhibit, or Sanitary District map and profile, as swinging oft from the Desplaines Eiver just below Riverside and swinging around into the Ogden Ditch. The Ogden Ditch was the outlet for the spillway. The water returns to the Sanitary Dis- trict channel at the entrance of the channel where it joins the West Fork near Robey street. The effect of the construction of that spillway, taking the spill waters from the Desplaines River of this river diversion, upon the amount of water flowing down the Desplaines River to the mouth from this region was that all the waters of the Desplaines River of a volume less than 4,500 sec- ond feet and of an elevation of less than 18 feet on the River- side gauge, were controlled southward through the City of Joliet. Waters in excess of 4,500 second feet passed in part over the 2454 spillway and by the route described, the Ogden- Wentworth Ditch and the West Fork to the South Branch of the Chi- cago River. The purpose was to so design this work that in extreme floods the volume of water passing the City of Joliet would not be increased until such time in the future as the Joliet situa- tion could be improved as to care for the same, the ultimate design being to close the spillway and raise the levees so as to control all the waters southward in flood time. Under this construction the flood waters of the Desplaines still ran out into the South Branch, but in place of the level being controlled by the Ogden- Wentworth Dam, at 1000 feet per second, this amount controlled was 4500 feet per second. The Desplaines River was one of the original feeders for the supply, as I understand it, and was act- ually used for the feeding of the Summit level of the Illinois and Michigan Canal. It always was used as a feeder at the City of Joliet where the canal crossed it in a pool and a dam absolutely intercepted the flow of the river, making it possible to flow all the water of the river in all stages into the Illinois and Michigan Canal at the City of Joliet. 2455 The Desplaines River was one of the sources of water supply to the Illinois and Michigan Canal, prior to deepen- 829 ing, in 1866 to 1871, and was tapped on the 12-mile level, 2456 that is between Summit and Lemont. The connection was made by which the Desplaines River was diverted from the river and turned into the canal in that strip. Then there was a dam No. 1 at Joliet which crossed the Des- plaines River, which controlled the entire water suply of the river, so far as it was needed for the canal, and after the — both be- fore and after the deepening. After the deepening there was also an inlet from the river into the canal below Lemont, upon the Summit level. As to what extent did these canal diversions and feeders deplete the water of the Desplaines River, I am unable to state farther than at times it would take all the water that went down the Desplaines River to feed the canal. The Desplaines River was not adequate in seasons of drought to feed the 2457 canal, and a feeder was made to the Calumet River at Blue Island, and resort was also had to pumps at Bridgeport in very dry seasons. The effect of inhabitation and reclamation of the land, tillage, as a depleter of the river, — is to diminish the absolute quantity of water flowing, and to shorten up the duration of stages of water and increase the low water period. The Desplaines River is an impermeable watershed or basin. In other words, the ground and sub-soil was substantially clay, so that there is very little ground water to feed the stream and maintain the flow in seasons of drought. Originally, from 30 to 50 per cent, of the watershed was covered with timber; there were extensive lakes and ponds in Lake County, marshes at head waters and in the valley as far down as Guerney, about opposite Lake Bluff, in Lake County, and also in the towns of 2458 Leyden, Proviso and upon Salt Creek which enters the Des- plaines River, at Riverside on the west. All these crossings of the basin exercise a very considerable control upon the man- ner of the run-off of the stream. The various areas and swamp areas and lake areas, and forest areas all serve to mitigate the extreme floods, and store the waters and prolong the duration of moderate stages of water and diminish the time of extreme low water. 830 Cooley, — Direct Exam, — Continued. There is a great variety of streams in this particular ; the Kan- kakee Eiver, for instance, and the Iroquois have very large marsh control of the flow in the stream, and the flow is well maintained throughout the year except in some years of extreme drought, when the swamps have run out and the stream will suddenly in the course of a week drop to one-third or one-fifth of its normal water volume. The Desplaines Kiver did not have this control to the 2459 characteristic extent — to the same characteristic extent as in the Kankakee or Iroquois, but still it was a considerable and large influence which has been changed for the worst by the effect of inhabitation, which has drained out the marshes, lowered the ponds, taken away the timber so that the storage and im- pounding areas have been largely destroyed and the water runs off quickly, and there being no permeable ground, the low water flow in seasons of drought is barely sustained. The area of Mud Lake, Portage Lake, La Petite Lac, as they were Imown at different times, and the Portage swamp, in all, a basin or watershed of about forty-eight square miles, lying east of the range line between ranges 12 and 13 east, has been drained out to the Chicago Kiver, except a small fragment which is near Summit, which I believe drains into the Illinois and Michigan Canal. That area has been entirely subtracted from the feeding area of the Desplaines Kiver. 2460 The effect of the drainage out of Mud Lake has been very material. It has diminished the absolute water supply to the extent of the contribution from that watershed, and has destroyed a very large control of the flow by the draining out of this impounding area which, acted as an equalizer of the flow of the stream. What I mean by that, ^ ‘ equalizer of the flow of the stream, ’ ^ 2461 — an area of this character, embracing several square miles is flooded in times of high water and acts like any reservoir, to feed any water at lower — to feed the river at lower stages, and greatly prolong the duration of a given stage of water in the stream below. 2462 The three stages which I have compiled from the Kiver- side gauge, ranging from 13.8 to 12.4 feet upon said gauge, are 831 medium stages of water. I have made a tabulation which I gave liere yesterday of the duration of the three stages. The best judgment which I can form in regard to that matter is that the effect of all the changes which have been made, and allowing for a year of normal rainfall, assuming the average condition, is that the duration of these three stages would he prolonged from 40 to 50 per cent, above the periods which I have estimated from the Eiverside gauge. 2463 The river-bed of the Desplaines River is not an evolution from the conditions of its own watershed, hut is a remnant of an ancient channel which formed an outlet of the Great Lakes up to a very recent geological period, and the influences of the nat- ural watershed have not been sufficient to silt up the pools or to otherwise change the regimen of the stream so as to conform to a normal stream for a basin of that character. ■ 2464 The profile produced here, shows us a river bed here, with very deep pools, such as that labeled Lake Joliet and that labeled Lake DuPage; these deep pools of that kind in formations of this character are not a normal type of a stream. These pools, Lake DuPage and Lake Joliet, the pools of the 12-mile level are all remnants of an ancient stream bed in which there are some undergoing processes of deterioration and shrinkage through the contributions of tributaries. This dotted line that I call bottom in 1899, which seems to have taken off about a half of the depth of Lake Joliet (referring to plat), is due to the silting vfliich has occurred between the profile of 1883 or the survey of 1883 and the survey of 1899. The culti- vation of the country seems to have greatly accentuated the fill- ing up of these pools. 2465 The best deductions that can he made in regard to that are that the flow through this channel and to the southward did n'ot differ for a very long period of time, very little from that now going out the Niagara River, and in that period when that flow was characteristic, we had formed the beach line known as the west ridge at Evanston, and the Tolleston beach, the beach be- hind Pullman, which were the old shore lines. The water ran out of the Desplaines River not less than twenty feet deep, judging 882 C ooley, — Direct Exam . — C on tin u ed. by these beach lines. The lake came np to those lines, and it was a down flow from that place on, all the way into the Desplaines. This great outlet was at Eiverside. That was the way of it, and when the lakes lowered to their present level, which they did by two successive stages, — there are lower stages which geologists recognize, — the Desplaines Eiver was tributary to Lake Michigan, and by the deposits which came down from the upper Desplaines and through the formation of a delta, this original divide 2466 was created at Kedzie avenue and gradually shifted the water into the other direction, and that process — that development or evolution was no doubt in process at the time Marquette and Joliet crossed here, and that divide was continually rising, turning more and more water to the south in flood times. The Chicago Eiver is a navigable stream. The Sanitary Dis- trict Channel is a navigable stream. Take a boat on Lake Michi- gan, suppose that boat were to enter the Chicago Eiver and go up the South Branch, it could get into the Drainage Channel; a boat that would draw for instance, from two to two and a half 2467 feet of water, as used in commerce, can go completely through the Drainage Channel and down to Dam Xo. 1 at Joliet. As to the fall in the bed of the Sanitary Canal and in the bed of the Desplaines Eiver between the controlling works at Lock- port and Dam Xo. 1, — I cannot give the difference in the beds of the streams at those points, 1 can give the difference in the stand- ard surface of the water at those points. I ran the levels a great many times myself, and I planned the Sanitary Canal myself. I am talking from facts within my knowledge, and it would be 42^ feet. That 424 feet occurs in one lock at the end of the Sanitary Canal opposite the power station. 2468 That is the power station that is indicated on this profile of mine where I say ''Miles from power station”; on this Ilillebrand Exhibit (illustrating on map), right on the section line, south of the Township of Lockport, the map at that point showing in red two channels, between Section 87 and Section 84, where the red line of the channel divides. That lock takes up the entire fall between the Sanitary Canal and the level of the crest of Dam Xo. 1, amounting to 424 feet as I have stated. That lock was built by the Sanitary District of Chicago under the 83:5 authorit}^ or by direction of an Act of tlie Legislature passed in 1903. Among hydraulic engineers and navigators, for computing the approximate velocity of a stream, there are a great va- 2469 riety of hydraulic formulae for that purpose; all, however, de- pendent upon one or two simple principles. I have a short ap- proximate formula which is accepted among engineers, — as ap- proximately correct ; one that I have used in my own calculations for quick determinations in regard to such matters. You take in streams of the character of the Des Plaines River, and of the Ogden Ditch, upon which I have verified the formula, the rule is that the velocity in feet per second is equal approximately to the square root of the declivity in feet per mile multipled by the mean depth expressed in feet. Suppose I have a stream with a declivity of nine feet per mile, and a mean depth of four feet, corresponding to a channel depth perhaps of five or six feet. The square root of the declivity 2470 is three, the square root of the mean depth is two and their product is six. In other words, the velocity of that stream upon that declivity will he six feet per second, or four miles per hour. There will he variations in that matter according to the character of the stream bed, of course, and the magnitude of the stream, but the rule as T have stated it, is approximately cor- rect. Counsel for complainant then referred to Exhibit 1-A and 2-A here, McCullough Exhibit 1-A and McCullough Exhibit 2-A, on which the certificate has been amended so as to read as follows : State of Illinois, Auditor’s Office, Springfield, May 9, 1908. ‘M, James F. McCullough, Auditor of Public Accounts, of the State of Illinois, * and by law custodian of the field notes and plats of the United States survey of lands in Illinois, and keeper of the seal of the office of Auditor of Public Accounts of Illinois, do hereby certify that the foregoing is a correct copy of the plat of the United States survey, transferred from the United States Surveyor General’s office to this state, pur- 2471 suant to an Act of Congress, of the following described sec- tions of land. Townships, 36, 37, 38 and 39, Sections 3, 4, 9, 10, 15, 16, 21, 22, 28, 29, 30, 31, 32,” and so on down, simply 834 describing the sections of land without any other descriptive language.’’ 2472 The witness testified as follows: These numbers, circles and numbers, on the said plats referred to, 46, 49, 50, 48, 47, 51, 52, 53, 54, 55, 56, 57, 58, 59 and 60, j)nt on in red, are the borings, the location of the borings shown in the Marshall survey, — the numbers being the numbers of the borings. I caused Mr. Edgar AYilliams to place those on that map. The general geographical names which appear on the map, Goose, Lake, Romeo, Emmetsburg, Keepotaw, Lemont, Archer and Pearson’s addition to Desplaines, Summit, Riverside, Lyons, Spring Forest, M'illow Springs, and so on, I caused Mr. Edgar AVilliams to place on that map. He did that at my direc- 2473 tion and under my supervision. I checked them up to see that they were in the proper sections. These are correctly located on this map. The legend near the center of Section 30, in Township 39 North, Range 14, east, where there is a small dot placed, and the inscrip- tion apiDears: — ^‘Approximate location of Marquette’s cabin, 1674 and 1675,” I caused that inscription to be placed there. 2484 Edgak Willliams, a witness for complainant, testified as follows: Direct Examination. My name is Edgar Williams, my business, civil engineer. I am on my own work a good deal of the time, and a great deal of the time with Mr. Cooley assisting on his work. I have been acquainted and working under Mr. Cooley twenty years. I was under him in the employ of the Sanitary District of Chicago as engineer. On the map marked McCullough Exhibit 2-A, I made these in- scriptions and marks and representations; beginning down here at the lower left hand corner in Section 35, Township 37, 2485 Range 10 E., there was the word Romeo. I wrote that there and also the following: Goose Lake, the boundary of tlie Village of Emmetsbiirg, and its name, nothing else. Also the Keepotaw, an old subdivision of Lemont, the name of Lemont, and the name of the subdivision of Keepotaw, the snb of the southwest fraction of the west half of the southeast quarter of the south fraction of the northeast quarter of Section 20 and the color which indicates it. Then next, two weeks ago — I had better take these others first. Near the Sag, I put on the ‘^Archer,’’ and the Pearson’^ additions to Desplaines, and its red color, and nothing else. I put on the name of Sag, and the Archer and Pear- son additions. The name of Sag at that last place. At Willow Springs I put on the name of Willow Springs and of Spring Forest. At Summit I put on the name of Summit and the boun- ^dary and the red color. I put on the name of Lyons and of Riverside; put on the name of Bridgeport; the approximate 2486 location of Marquette’s cabin, 1674 to 1675, and the house. The name of Bridgeport. I put on the coloring which marks the odd numbered sections along the river. Section 1, Section 11, Section 15, Section 25, Section 33, Section 5, Section 7, Section 1, Section 11, Section 15, Section 21, Section 19, Section 25, Section 35. That is to represent the sections of the canal lands on that McCullough Exhibit 2- A. I put on the borings in red, 46, 49, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 and 60. I took the loca- tions of those from the Marshall report of those borings. I don’t see anything else from these colored town sites that I have indicated. I had the certified copies of the plats before me when I put those on. They are correctly located. These sev- eral geographical locations are correctly placed, except I 2487 put on this, Mr. Cooley’s location of Marquette’s cabin. My information on that was obtained exclusively from Mr. Cooley. On McCullough Exhibit 1-A, I placed upon that map beginning at the top where it connects with the other, the boundary of west lot 4 and its name, and the color, red color. The boundary of lot 4 and its name, and the color. The location and the name of the penitentiary. The location of the Sanitary District gauge, and its name. In Section 9 the location of the Economy Light & Power gauge and its name, at Dam No. 1. Then the name of Dam No. 1, and 836 Edgar Williams, — Direct Exam, — Continued. the location of the dam. The gauge No. 1 of the survey of 1883, the name and the location. The name and the location of the Jetferson street bridge. The name, color and boundary of the west Juliet subdivision or plat. The name, color and location and boundary of Juliet. The name, boundary and location of the School Section Addition to the Town of Juliet on the west side of the River, and the name, boundary and color of the School Section Addition to Juliet 2488 on the east side of the river. The name, boundary and color of the subdivision of Block 96 of the School Section Addition to Juliet. The name and location of Gauge No. 4 of the survey of 1883. The name, and location of Haven’s Dam. The name and location of Brandon bridge. The name, boundary and color of the Buffalo addition of the Buffalo plat. The name, color and boundary of the Vienna plat. The name of Lake Joliet. The name and location of gauge No. 3 of the survey of 1883. The name of Treat’s Island. The name of Millsdale and the location. The name and location of gauge No. 4 of the survey of 1883. The name and location of the Sanitary District gauge under Smith’s bridge. The name and location of the United States gauge near Smith’s bridge. The name and location of Smith’s bridge. The name of Lake DuPage. The name and location of the Sanitary District gauge a mile below the Smith bridge. 2489 The name and location of the Sanitary District gauge a mile and a half above the Kankakee River on the Desplaines River. The name and location of the Sanitary District gauge half a mile above the Kankakee River on the Desplaines River. 837 The name, color and location of gauge No. 5 of the survey of 1883, a quarter of a mile above the Kankakee Eiver on the Des- plaines River. The name and boundary of the plat and location of Beard’s Part and the Handy Part of the Town of Kankakee. The name and location of the Sanitary District gauge and of the United States gauge in Section 27, Town 34 North, Range 8 East, two and a half miles below the Kankakee River. Then I colored the canal lands in Town 36 North, Range 10 East, Section 3, Section 15, Section 27. In Town 35 North, Range 10 East, I colored canal lands. Section 3, Section 9. I also wrote — put on the name of Joliet in that Section 9. I colored Section 21, Section 19, Section 29 and 31, all in Town 35 North, Range 10 East. In 35 North, Range 9 East, I colored Section 25, Section 35, Section 14, Section 11, Section 15, Section 21, Section 29, and Sec- tion 31; all in Town 34 North, Range 9 East. 2490 In Town 34 North, Range 8 East I colored Section 25, all canal lands. There is not anything else that I put on there on either of them. But for what I have enumerated McCullough Exhibit 2 and Mc- Cullough Exhibit 2- A are in the condition in which they came to me. And thereupon it was agreed by counsel, as follows: It is conceded that McCullough Exhibit No. 2- A, which is the sheet counsel for complainant now holds, is the same as McCullough Exhibit 2, in so far as counsel for the defendants now know or believe; but they reserve the right to examine and verify it, and it may be considered as a duplicate unless they raise objection hereafter. 2491 Counsel for defendant thereupon reserved their objec- tion that there is no plat of this nature at Springfield, and further that the note ^ ‘ field-notes of the meander survey shows this point as head of navigation, but original plat shows no indication thereon, did not appear on the original at all. 2494 Thereupon the court held that the same ruling would apply 838 E dga r Will ia ms, — Di rect Exam . — C onti nued. to Exhibit 2-A as previously applied to McCullough Exhibit 2, and the said note would he omitted, together with the note ^‘location of Marquette’s cabin.” 2495 And thereupon the balance of the map was admitted in evidence. (Atlas, p. 3916; Trans., p. 6486; Ahst., p. 1915.) 2496 •' Cross-Examination. Q. Mr. Williams, did you locate the situation of these various gauges and bridges and so on by yourself! A. I did. Q. There are some eleven i)assenger bridges and two railroad bridges over the river in the part shown by map, McCullough Ex- hibit A-1! A. Yes. Counsel for Complainant. I object to that, if your Honor please. Just a minute; I am not sure whether I understand Mr. Scott’s question, whether he means to say — to ask the witness to count up the bridges which he has put here, and give the total of them, or whether he means that this existing situation is the situa- tion in that territory at this time in fact. I do not know which the counsel means. Counsel for Defendant. Mr. Williams answered the questian. What did you understand me to mean, Mr. Williams! Counsel for Complainant. Bead the question. (Question read.) Counsel for Complainant. Wait a minute, before that question is answered I want to know — The Court. It has been answered, so it is proper not to ask what he understood, so long as it has been answered. 2497 Counsel for Complainant. But before it goes any further I wish to interpose the objection now, if it means what in fact exists in this territory at this time, I object to it, because that is no part of the matter which was dealt with. The fact is, there were certain specific objects that had appeared in evidence in var- ious ways which it seemed desirable to counsel for the State to have delineated and illustrated, so that the evidence would be illus- trative, and we got this witness to make the illustrations. Now, if counsel is asking him whether there are not some other things that are not illustrated, I say it is not cross-examination of this 839 witness now, and I object to the answer, and move that it be stricken out. Counsel eor Defendant. As to that, it is quite important that an illustration shall illustrate the general subject matter it is in- tended to illustrate. Now, while it is true that there was evidence showing two bridges which appear here, there was also evidence showing eleven more bridges which do not appear here. While it is true that there was a dam shown here, it is also true that there were several more dams shown by the evidence at the time this was made. Now, I simply do not want any confusion on the part of the court, and I am asking the man who made this and lo- cated these obstructions, whether there were or not more 2498 of the same character that do not appear on the map. A. There were more bridges than are shown here. I only show those few bridges at Joliet and the Smith bridge. We show Haven’s Dam here, but as I understand that isn’t in the river now. Dam No. 1. There is Dam No. 1. Q. Well, you say Haven’s Dam is not in the river. How many other dams were there not in the river at the time you made this that you did not show? Counsel for Complainant. I object to that, if your honor please, Please repeat the question? (Question read by the stenographer.) 2499 Counsel for Complainant. I submit, if your honor please, it is not part of the proper cross-examination of a witness who comes here as an engineer to explain a draft or plat, which he has made, to ask him how many other things at any other time there has been that he has not shown. It is certainly not proper cross-ex- amination. . The Court. I should rather think that the cross-examination should be confined to getting at the purposes and the reasons why he showed it. If he did it simply because he was instructed to do it, why that ends it, so far as he is concerned. Counsel for Defendant. Well, it is the map or plat that is the significant thing, and not the witness, and when they put in a map it either ought to show the thing as it is or we ought to 840 Edga r W illiams, — C ross-Exam.— Con tin tied. be permitted, it seems to me, to have the man who made it show that it does not show the thing itself. The Court. Yes, you may do it by showing how he came to put in certain things and why he omitted other things, and if it is simply because he put in the things he was instructed to put in, why, then you have got to go further with somebody else, not with him. Counsel for Defendant. First, I must establish that there were things he did not put in before I ask him why he did not put them in. The Court. Yes, but in a general way, not as to the details. In addition to Haven’s Dam, that I did not put on this plat, 2500 I think there was a dam at Treat’s Island on the north side. I have never been down to Treat’s Island, and what I know of it comes wholly from maps and profiles. I put on the work that I was directed to put on. I had recourse to the profile of 1866 and 1867 to get this location. I have seen the profile. United States G-overnment survey profile of 1867. I have worked 2501 on it in connection with this river a little. Q. Didn’t that show you a dam about where the Economy 2504 Dam is now being built! A. I think it does. Counsel for Complainant. I object to this as not the best evidence. The Court. He may answer. Counsel for Defendant. He has answered that he thinks it does. Were you instructed not to show them upon this map! A. I had no instructions at all about that. Q. Xo instructions as to it! A. Xo, sir. Q. Y7ere your instructions simply that you should show the bridges that you do show specifically! A. Yes, they gave a list and I put them on according to the list. Q. They gave you a list of the things that they wished you to show on the map and you put them on! A. That is two or three times, the first list did not cover all; they first wanted 2505 some things put on and then others. Q. You were instructed to show and did not attempt to 841 show the various structures of the same kind that appeared all the way down the river? . Counsel for Complainant. I object. Counsel for Defendant. As, for instance, you did not attempt to show all the bridges or all the dams that had or did exist? The Court. Eead that question. (Question read by the stenographer.) Counsel for Complainant. I object to that, your honor. A. No. Counsel for Complainant. I sumbit, your honor, please, there is nothing intended there but an argument. The Court. I think he is entitled to the benefit of the argu- ment. Thereupon the said maps marked respectively McCullough 250 j 6 Exhibit 1 and 1-A and McCullough Exhibit 2 and 2-A were then received in evidence. (McCullough Exhibit 1, Atlas p. 3913, Trans, p. 6480; Abst. p. 1914, 1-A p. 3914, Trans, p. 6482, Abst. p. 1914, Exhibit 2, 3915, Trans, p. 6484, Abst., p. 1916, 2-A, p. 3916, Trans, p. 6486, Abst. p. 1916.) Lyman E. Cooley. thereupon resumed the stand and further testified as follows : Direct Examination. I have seen the plans under which the proposed dam of the defendant is proposed to be constructed. I have examined it. I am acquainted with the site of the dam and the physical condi- tions of the river at that point, above and below. A dam built according to the plans produced for the building of the defendant’s dam across the Desplaines River will 2507 close the river from bank to bank and absolutely prevent any navigation. The effect upon the future development of navigation would be greatly to the injury of navigation. The dam is not located at the proper place to best develop the inter- ests of navigation. It is situated on a rapids with a consider- able descent below for a mile and a half, and all modern practice 842 Cooley — Direct Exam. — Continued. in regard to tlie treatment of a situation of that kind would 2508 require that that dam should be put at the foot of the rapids and as far down stream as is practicable, that is a dam for the purpose of navigation, not this particular dam. A dam located at the lower site would back the water to the crest of this dam and require its removal in order that boats might pass to and fro. I speak of the location a mile and a half below as the proper location for a navigation dam for the development of the navi- gation of the stream. I am referring to the particular depth for which the last report was made, fourteen feet with a suggestion of 20, and more particularly to a depth of 24 feet as in accord- ance with the plans of the Internal Improvement Commission. The larger depth makes the lower site more and more advantageous as you proceed toward larger depths. So that if we were to 2509 consider 24 feet of water in the river as something to be actually produced at this time, and the dam of the Economy Light & Power Company there, I should be disposed to think that it would be wiser and better to condemn it out, then to shift it down stream where it belongs. Thereupon counsel for complainant read in evidence from the House Document No. 263, 59th Congress, First Session, from which passages have already been given, the following extract on pages 45 and 46: 2510 ‘^Dams. In order that there may be no damage inflicted on the bot- tom lands above the level of the crests of the proposed dams, the Board decided that all of the dams should be movable in character. In accordance with your instructions, plans and estimates were prepared of dams of the Chanoine-wicket type. This form was adopted, not because it was necessarily tile best that might be devised, but because this tyjie has given satisfactory service on the Ohio and Kanawha Divers, and because the estimates prepared on this basis will cover the cost of any other desirable type in case later experience should prove that some other type is preferable. The longest wickets now in use are less than 16 feet in length, and, as it is doubtful whether wickets longer than 18 feet can be handled conveniently, the latter length has been adopted as the maximum in the preparation of the plans and estimates. The width of wicket adopted is the standard width of 3 feet 9 inches, with 3-inch spaces between wickets. No 843 provision has been made for service bridges from wbicb to operate the dams, as the experience at Davis Island Dam and Dam No. 6 on the Ohio Eiver has demonstrated that the wickets can be safely and rapidly operated from boats or scows. The design prepared by Mr. F. B. Maltby, United States assistant engineer, for the proposed dam across the Mis- 2511 sissippi Kiver at Alton, III., in connection with the exten- sion of this project to St. Louis, Mo., has embodied in it the best American practice on Chanoin e-wicket dams, and his design has been followed on this work. On the Ohio Kiver dams, which are now under construction, as well as on those in operation, Chanoine-wickets are used to close the channel, and bear-trap dams of various widths are used to control the water levels. On the Kanawha River, however, the water levels have been controlled by the Chanoine- wickets without the assistance of any other form of dam. The designs for the present projects follow the Kanawha River practice and make no provision for any other type than Chan- oine-wickets. The entire width of the river is closed by a con- tinuous line of Chanoine-wickets without any intermediate piers. The cross section of the river was platted at each of the seven proposed dam sites, and from these cross sections were determined the thickness of the concrete base and the length of wicket for each of the nine proposed dams required under the different 14-foot projects. The main portion of each abutment has been designed with a top width of 5 feet and a bottom width equal to about four- tenths of the height. The upper wing, which extends into the bank at right angles to the main portion, has a top width of 3 feet. These two parts of each abutment are built up to 2512 the same level as the lock walls at the oposite end of the dam, or about 2 feet above high water. The lovrer wing swings the bank at an angle of 30 degrees with the main por- tion of the abutment and is stepped down from 4 to 14 feet, according to the height of the abutment and the level in the pool below the dam. The location, principal elevations, and dimensions of the dams required under the different 14-foot projects are given in the following table: 844 Cooley j — Direct Exam. — Continued. 2513 PRINCIPAL ELEVATIONS AND DIMENSIONS OF DAMS RE- QUIRED UNDER 14-FOOT PROJECTS. No. of Miles from Upper level at low- water crest High water. in 1904 or Lower level at low Dam. Location. Station. Grafton. of dam. 1892 water. bl Jackson street, Joliet. 1523.0 288.5 545 549.6 535.0 2 Foot of Treats Island. 1473.9 279.2 515 514.0 505.0 3 1^ miles below Kankakee river. 1434.1 271.6 505 510.0 494.0 4 At Marseilles. 1306.0 347.3 491 493.2 485.0 5 Head of Bulls Island. 1273.0 241.1 472 476.0 J 466.0 ( 464.0 6 Head of Buffalo Rock. 1243.0 235.5 466 472.4 460.0 7 Lovers Leap. 1220.2 229.9 460 469.4 451.6 a7 Lovers Leap. 1220.2 229.9 464 469.4 451.6 8 Foot of Plum Island. 1213.8 231.1 460 468.6 451.2 a8 Foot of Plum Island. 1213.8 231.1 464 468.6 451.2 a Not printed. b Dam No. 1 of the Economy Light and Power Co., Joliet, 111. 2514 PRINCIPAL ELEVATIONS AND DIMENSIONS OF DAMS RE- QUIRED UNDER 14-FOOT PROJECTS. (Concluded.) Eleva- Eleva- No. Head Lengt h tion of tion of Length No. of at low of bed top of of V dckets. of Dam. •water. Project. Dam. rock. sill. Ft. in. map, bl 10.0 0 0 57 2 10.0 600 498 503.8 12 0 56 3 11.0 840 483 488.2 18 0 55 4 6.0 830 478 481.7 10 0 52 5 6.0 B and D- ) 1 8.0 A and C- J ' c750 455 460.8 12 0 52 6 6.0 500 443 449.2 18 0 7 8.4 B 800 439 447.2 13 9 51 a7 12.4 A 800 439 447.2 18 0 51 8 8.8 D 600 438 443.2 18 0 51 a8 12.8 C 600 438 447.2 18 0 51 a Not printed. 1) Dam No. 1 of the Economy Light and Power Co., Joliet, 111. c Section 470 feet long over north channel, and section 280 feet long over south channel.’’ 845 2516 Q. By the way, Mr. Cooley, you, earlier in your testimony this morning, spoke of high stages and medium stages and low stages of water, and you referred to the natural reservoirs as prolonging certain of the stages. Which of the stages would it prolong? A. The medium stages. Q. What effect would it have on the low stages! A. Shorten their duration. The practice of Government surveyors with reference to mark- ing meander lines on a river, in platting a standard plat of two inches to the mile is to plat the river bank as the meander line. It is the high water bank which is the theoretical meander line. The secondary lines run by the surveyor for the purpose of de- termining that, are not platted but the bank itself, which is the object of the survey, is platted. The treatment upon a map of this size, — and I refer to McCullough Exhibit 1 — in a stream that is meandered, would differ from the treatment of a 2517 stream that is not meandered, in the making of the plat on this scale. In this way, the stream that is not meandered would be shown in the conventional way, by a couple of parallel lines if it was a large stream, or by a single line for a smaller stream. The meandered stream would show the courses, — the meanders as actually run by the surveyor and actually determined by the. surveyor. Directing my attention now to Township 34, Range 8, on McCullough Exhibit 1, and to Township 34, Range 9 on McCullough Exhibit 1, this ditference to which I have referred is indicated in the treatment of the two streams. The Dupage River as shown upon that map is not a meandered stream. The Desplaines and Illinois and Kankakee are. A surveyor familiar with the custom and practice of the Government surveyors in- specting that map would be informed as to what stream was meandered and what stream was not by the manner in which the streams are delineated; also by the figures of acreage given for the fractional sections along the meandered stream. The sec- 2518 tion in and through which the Dupage River runs would show full quarter sections unless they were to the north or west of the township, whereas on the Desplaines River or the other meandered streams they would show fractional quarter sec- tions where in contact with the stream. He would see parallel 846 Cooley, — Direct Exam, — Continued. lines in one and a lack of parallel lines in tlie other. That would be evidence at once that one stream was conventionally platted and the other was platted by the notes determined in survey. 2520 I have seen the site of this proposed dam of defendant with the coffer-dam and other works that they have erected near the mouth of the Desplaines Eiver. The site of this dam and that cotfer-dam, and that work that I have seen there, is in 2521 Grundy County, Illinois. If the towpath bank is raised two feet or more above its height, and the dam placed across the Desplaines Eiver, in ac- cordance with the plans that have been submitted, and at such a height as indicated upon the plans, and the dam is main- 2522 tained at that height, the etfect will be to depreciate the value of the bank, and in the course of time it will be de- stroyed. 2523 The maintenance of a level of water against the outside of the bank is a radical change in conditions so far as ef- fects the stability of the bank and the etfect will be to disintegrate the bank eventually until it disappears or is greatly reduced. That would be the inherent and necessary effect of a situa- 2524 tion of that character. I mean to say that it is not humanly impossible to build the bank — I do not undertake to say that it is humanly possible to build a bank which would be safe, but that the present bank with such amendments thereto as I have seen indicated on the ground and in the plans would be subject to criticism. The bank of the canal above the proposed site or above the actual site which is being developed, was in process of change for a couple of thousand feet or more, and it had been staked out, I judge, for nearly a mile up stream, and had the appearance of being a completed work for about 1,000 feet up stream. The 2525 bank was being raised, I judge, for about two feet. It was widened on the canal side. Eip-rap usually designates rocks that are loosely dumped or ])laced, and a similar rip-rap on the face of the slope, on the other slope of the canal, and between this was placed earth, that I judged to be in part taken from the excavation. 847 That is the spoil bank of the excavation. This rip-rap slope was as steep as the rock would stand at the dump, and the filling in between seemed to be placed without care and without any reference to forming a proper bond between the original surface and the new material, and was not in accordance with what T should call good practice. 2526 It is a saturated bank, or it would become a saturated bank, which requires — which greatly diminishes the stability of the earthen material, and which tends to degrade it to a flatter slope. A flatter slope is required for stability, and at the wave line or the line of fluctuation between high and low water there are wave forces coming from a very extended pond or lake, which are a constant source of degradation. There are ice floes which sometimes shove a bank of that kind very severely in the forma- tion of ice in a pool, and there are depredations committed by vermin such as crawfish and muskrats which have caused the fail- ure of more earthen dams in northern climates and more levees in southern climates than all other causes put together. 2527 Q. You spoke in your testimony yesterday of a deep cut running along the side of the canal, and in fact 18 feet below it and the consequent percolation depleting the river and changing the lines. Now, with this pool placed underenath the bottom of the canal, what would be the effect on the canal? A. Taking the view of it that we did when we planned the Sanitary District Canal, we thought it desirable to put the canal up the river, as far away as practicable, and so we shoved it over clear to the opposite side of the valley, — Q. How far? A. But the nearest point is between two and three hundred feet, where we were forced by necessity to bring it, and at other points we kept it at a minimum of 800 feet, where we had the space to do so. Q. That was to avoid what? A. That percolation and any possible saturation of ground which would produce a slip towards the work which we were executing, and to insure better security. Q. That you regarded as a necessary measure of safety in paralleling the waterways? A. We thought is was the wisest precaution. 848 C ooley, — Direct Exa rn . — C o n tin tied. 2528 Is it practicable to take the canal and shove it over at this place on the side hill? A. It is not. The Dresden Blntls are 80 to 100 feet, I should judge, above the level. Q. How wide an earthen bank would reasonable precaution call for between two such bodies of water at these two levels? A. I would not like to make a specification without pretty carefully considering the soil conditions, from Channahon down to the site of the dam. I think I would approve possibly of the specification which the company has already made in regard to the short piece of dam between the power station and the towpath bank with the top of it doubled or tripled in width, provided that in place of flat pavemients as they have put in there, that they put in genuine pavements such as is used on the dikes of the Hudson Eiver on the Erie Canal, 15 to 20 inches in depth, stood on edge at the chafing line of the waves, and the ice. That specification calls for a front slope two and a half feet to one and for a back slope of three and four to one, as the company has drawn it for its own em- bankment. 2529 I referred to a bank that is mentioned in the specification and plans of the company, connecting the site of the power station with the towpath and 175 feet long, of which a specification is given as shown on the plan. That is down at the point of the junction of the dam across the stream with the towpath where there is a peninsula of ground some 400 feet wide between the towi^ath and the river. In looking over the plans it occurred to me that that was the judgment of the engineer who made those plans, as to what kind of a bank should be built. If it was proposed to double the width on top as there given with the same slope and the same treatment as called for by this specification, I do not at the moment think that bank could be com- pleted on the present right of way of the canal without shifting the canal over on to the bluffs. 2530 Q. And that, you say, is not practicable? Counsel fok Defendant. I object — oh, he said he could not shift it over. A. To a limited extent only on account of the height of the 849 bluff. You may shift it for perhaps 10 or 15 feet without en- countering great difficulty. I know what the character of a wicket dam is. They are a part of the standard practice in the development of rivers in this coun- try and in Europe where it is desired. They are in use in this country upon navigable streams, for the purpose of giving in low water periods the depth for navigation which prevails at medium and high water stages. The nature and operation of such a dam is — a river may have, we will say, seven feet of water in it for three to five months of the open season and be navigable as an open river during that period and to that depth, but a much less depth of water in the dry season. The object of these dams is to produce a slack water navigation during the dry season by which this depth of 7 2531 feet can be kept open the year around. And when the water in the stream is sufficient to produce 7 feet wfithout the dam, why, the dam is dropped down upon the river bed and the river is handled as an open river. In other words, it is an open river proposition when there is enough water in the river, and slack water or lock and dam propositions when the water is low. A Chanoine-wicket is one of the types — there are other types of the movable dam. They have been in use in this country from a very early date. The whole system originated with the so- called bear-trap dam in the Lehigh navigation, and it was taken to France and forgotten and again brought back to this country within the last forty years. The improvement of the Desplaines Eiver in the last project is an open river for 14-foot navigation whenever there is that volume of water in the river and a closed or slack water whenever the stage of water is insufficient to pro- duce 14 feet. 2532 Thereupon counsel for complainant offered and read in evidence the deposition of George W. Eaymond, a witness for complainant. (For rulings on same see Abstract of Depositions supra, p. 433.) Thereupon counsel for complainant offered and read in evidence the deposition of Henry E. Pohl, a witness for complainant. 850 (For rulings on same see Abstract of Depositions supra, p. 444.) Thereupon counsel for complainant offered and read in evidence the deposition of James E. Flanders, at witness for complainant. (For rulings on same see Abstract of Depositions supra; p. 429.) Thereupon counsel for complainant offered and read in evidence the deposition of Joseph Countryman, a witness for complain- ant. (For rulings on same see Abstract of Depositions supra, p. 476.) Thereupon counsel for complainant offered and read in evi- dence the deposition of Arthur C. Clement, a witness for com- plainant. (For rulings on same see Abstract of Depositions supra, p. 391.) Harold T. Griswold^ a witness for complainant, testified as follows : Direct Examination. 2533 My name is Harold T. Griswold. I live at Evanston, Illi- nois. I am thirty years of age. I have lived at Evanston 2534 twelve years. I lived prior to that in Chicago. Illinois is my native state. I have lived here all my life. I am in the whole- sale lumber business. I have been so engaged for the past four months, and prior to that I was with the National Bending Ma- chine Company for four years. And prior to that I was with Gris- wold, Browning & Company, wholesale cloaks. I do not know ]\[r. W. L. Sackett, one of the Canal Commissioners of Illinois; did not ever see him that I know of. I do not know Mr. Snively, who is another of the Canal Commissioners; I have not ever seen him that I know of. I do not know Mr. Newton, one of the Canal Commissioners of Illinois. I did not ever see him that I know of. 2535 As to the contracts with the Canal Commissioners of Illi- nois along about September 2, 1904, I am the party that 851 signed those contracts. I did not personally make any negotiations for them. Those Commissioners, or either of them, were not present at the time I signed these several contracts. I signed them in Mr. Munroe’s office in the Rookery building. 2536 I did sign some papers, however, in Mr. Scott’s office per- taining to these matters, these contracts. They were deeds running to the Economy Light & Power Company. That was in 1906. As to the contracts I made with the Canal Commissioners, after executing them, I had nothing further to do with them. I under- stand the contracts were made in my name and that I signed them. 2537 I suppose those contracts stand in the name of the Econ- omy Light & Power Company. Possibly I assigned them to them; my memory is not clear on that. It is the fact that when- ever papers were presented to me by Mr. Munroe to be signed I signed them. I read them over at the time. I had some un- derstanding at least of what the subject matter was. I don’t re- member that the several contracts made in my name with the Canal Commissioners were by me assigned to the Economy Light & Power Company, or to Mr. Munroe. I cannot tell whether I assigned them in blank, or whether I assigned them to some com- 2538 pany or individual. I did not make any investment myself in those contracts. I paid nothing. I did not have, in fact, any interest in them, financial interest, I mean. I consented to the taking of these contracts in my name at the request of Mr. F. Gr. Logan. That is the same Mr. Logan who sits here in Court now. He is a relative of Mr. Munroe— father-in-law. He resided in the City of Chicago at the time these contracts were signed. I believe he lives in Joliet at present. Q. Mr. Griswold, are you, or have you been, at any time within the last five or ten years, financially able to carry out a contract that would involve the expenditure on your part of $100,000.00? Counsel for Defendant. That is objected to as immaterial. Counsel for Complainant. I insist upon it as being material. The Court. He may answer. The MTtness. Not alone, no, sir. 852 G i isw old, — B irect E xan i . — Con t inued. Counsel for Complainant. Without desiring in the remot- est degree to pry into your private affairs unnecessarily, I 2539 will ask if you have been financially able at any time during the past five or ten years to carry out a contract that would involve the expenditure of $50,000.00 on your part! A. Yes, sir. Q. Have you been able to do that! A. Yes, sir. Q. Have you been able on your own accord, within the last five or ten years, to carry out a contract that would involve a $75,000.00 expenditure! A. Hardly. Q. At the time, however, the contracts were made with the Canal Commissioners, you had no purpose or thought or design of carry- ing out in your own name and for yourself the provisions of the contract! Counsel for Defendant. I object to that as immaterial. The contract is binding on the party. The Court. He may answer. The Witness. I did not. In addition to contracts with the Canal Commissioners I did execute other papers in my name and did take the title to real estate, at the instance and request of Mr. Logan and Mr. Munroe. These lands were situated near the Desplaines Eiver and 2540 near the site of the proposed dam of the defendant company. I did not ever see these lands — ^do not know what was agreed to be paid for them. I did not pay anything for them. I conveyed the title after it was given to me to somebody else. Q. In fact, then you have, if I understand you rightly, Mr. Griswold, allowed the use of your name to take title to a lot of land along the Desplaines River and near to the site of the Economy Light & Power Company, and to take contracts in your name with the Canal Commissioners at the instance and request of Mr. Logan and Mr. Munroe, without any personal interest in them, in any man- ner whatever! A. Yes, sir. Q. And without any purpose on your part to carry out the pro- visions of any of these contracts! A. Yes, sir. Q. In the conveyance of these lands that were taken in your 853 name, did you convey by quitclaim or -warranty deed, if you know? A. Quitclaim deed, I believe. Q. You understand they were by quitclaim deeds? x\. AYs. sir. Q. If they should turn out to be warranty deeds, then you 2541 are mistaken in that? A. Yes, sir. Q. That is all, your Honor. Cross-Examination. Mr. Munroe was not a relative of Mr. Logan’s at the time I took those titles, and did not become so until the last few months when he married Mr. Logan’s daughter. I knew Mr. Logan to be finan- cially responsible at the time I acceded to his request to take these titles and contracts. I felt entirely safe in assuming such obligations as he requested me to. The conveyance to the Econ- omy Light & Power Company was made in Mr. Scott’s office 2542 in 1906. I did not meet Mr. Scott on that occasion, or in that connection. It was all done with Mr. Lord and Mr. Munroe, That was November, 1906, I believe, and that was the time the enterprise or properties were taken over by the Economy Light & Power Company, as I understand it. I understood that Mr. Logan was to carry the deal through. Re-direct Examination. Q. Just a moment. Who told you that? A. I understood it from the fact that Mr. Logan had asked me in the first place to act as trustee for the property. Q. The fact that he requested you to act as trustee or 2543 take the deed in your name is what makes you think that he intended to carry them out? A. That he was responsible for it, yes, sir. Thereupon counsel for complainant offered and read in evidence the deposition of Clarence H. Palmer, a witness for complainant. (For rulings on same see Abstract of Depositions, supra, p. 316.) Thereupon counsel for complainant offered and read in evidence the deposition of John M. Sweeney, a witness for complainant. (For rulings on same see Abstract of Depositions, 5?^pm,p.320.) 854 2544 Hon. S. R. Van Sant, a witness for complainant, testified as follows : Direct Examination. My name is S. R. Van Sant; I live at Minneapolis, Minnesota. That has been my home about two years ; have lived in Minnesota 25 years. I was Governor of Minnesota at one time. I was first elected in 1900 and served in 1901 to 1905, the second time. My home before I went to Minnesota was Davenport, Iowa, and Rock Island, Illinois. I am in the transportation business, principally on the Mississippi River. I have been in business connected with the navigation of the Mississippi River, actively and as an owner of steamboats since 1870. Before that I was 2545 employed in a boat yard, building and repairing steamboats, and as a caulker on steamboats, at LeClaire, Iowa. It was formerly at Rock Island, Illinois, and was moved from Rock Island to LeClaire. My father was in the business of manufacturing and repairing steamboats there for many, many years. I have been licensed as a pilot and master upon the Mississippi River by the Federal Government. My first trips on the river were in 1857, when quite a small boy. I have been engaged contin- uously in the business of piloting, handling and operating steam- boats upon the Mississippi River, or in the business of manu- facturing and repairing steamboats continuously from that time up until the present. I was in the Civil War, of course, but I worked in the boat yard as a boy with my father. Of course, I dis- continued working while I was in the army. Barring the time I was in the Civil War, 1861 to 1865, my life has been connect- 2546 ed with navigation upon the Mississippi River continuously from 1857. I am connected with a navigation company at this time, the Van Sant Navigation Company, and with the Carnival City Packet Com- pany. Those companies own and operate ten steamboats on the Mississippi River at this time. In the course of my life on t}ie river my companies have owned, I should say, thirty to forty boats. I have made the trip on the Mississippi River, the Upper Mis- sissippi, in the course of by business and duties which I have de- scribed, — well that would be hard to tell exactly, — I suppose at least five hundred or a thousand trips. These steamboats on the Mississippi River make a dozen or more trips a season; quite fre- quently as many as twenty trips a season, 25 in some cases. 2547 The trip would usually commence at LaCrosse, the rafting works. West Newton and the mouth of the Chippewa, Reeds Landing and Stillwater and Prescott. These boats that I am speak- ing of are tow boats, and they would go to all points on the river above St. Louis and to St. Louis occasionally. Those were Min- nesota and Wisconsin points where we got our tows. The boats I was operating upon as pilot and master were engaged in the carrying of freight and passengers upon the river, in some in- stances, but not very much. They were mostly towboats, but we have carried excursions with them, and carried freight in 2548 some instanecs. But the principal business of the boats I personally operated on was towing, of course, and bringing lumber down the river to the points mentioned. The boats that belonged to the companies with which I am con- nected were engaged in the business of transporting freight and passengers, and are. In the early days they did not tow rafts by means of steam- boats, they floated them with sweeps, with men on the cars. Sweeps are large paddles with an oar stem, a long stick you might call it, a stick of timber with an oar placed on, and they are hung on a pivot on the bow and stern of the raft, and the rafts are steered with these sweeps or oars. To operate those sweeps would re- quire the etforts of twenty-five men, 12 or 14 at each end. It main- ly depends upon the size of the raft. They were used principally in steering. These lumber rafts were largely put up in what 2549 we call cribs, tiered one course above the other, usually ten feet wide and thirty- two feet long. These were put in the rafts. Courses of plank, timber or. boats, — suppose you had a raft of ten courses, that would mean ten inches. Each course was called an inch. Twelve courses would be twelve inches deep. Six one inch — the boats would be equal to six inches of timber. Six inches of timber would be called six inches deep. And to make 856 Fan Sant, — Direct Exam. — Continued. a 12-course raft then, if it was made of two-inch plank it would be only six layers of plank, hut it would be called a 12-course raft. The business of towing rafts by means of steamboats first came in on the Missisippi River about 1866 to 1867. It came about — I don’t know, because during the Civil War when men were so scarce, for they were in the army, they got a small class of boats and used the men only on the stern. They did not keep the men on the bow. I did in our boat yard manufacture boats for that ser- 2550 vice and install them in service in the ’60s, — in 1869. The first boat that I remember was a boat called the James Lyon. That was in 1857. Well, as I remember, she was a boat 160 to 170 feet long, and with a 32 or 36-foot beam. Her draft line would be about 26 to 30 inches. When I was on her she was en- gaged in taking corn in sacks from Fulton, a point on that river reached by rail to Minneapolis and St. Paul. That was the cus- tomary form of traffic on the river at that time. From Rock Island, where the boat yard was, up to the Minne- sota points I have named, during the winter months we stopped navigation about the I5th of November and commenced again 2551 about the 1st of April. Then in certain seasons when the water was low, boats of heavy draft could not run. It would be perhaps two months, quite frequently, that navigation would be suspended. I am speaking of before the river was improved. It would be two or three months. It depends on the stage of the river. In some seasons it would be more, and in some less. December, January, February, March,— and one-half of Novem- ber, that is four and a half months that they would go out for the winter, and two months for low water in the summer, that would be six and a half months that there would be no navigation and five and a half when there would be navigation, when the low water interruption would be two months. The winter months we couldn’t run at all, and quite frequently in those years during the season of low water it was impossible to navigate on account of bars and rapids and other obstructions when the water was low. The period, then, of actual navigation, taking the years as they run on an average, would be five or six, and in some cases seven months, not to exceed that. 2552 The season of low water when the larger boats could not make the through trip, I would say, would be a couple of months, it depends. Some seasons we would have a rainy, wet season, and they would run more. It is a question of the draft of the boats and the stage of water in the river. It is wholly gov- erned by that. It may be more and may be less. I have seen it more. In 1864 we couldn’t run at all. That was known as the ‘‘Low Water Season.” Navigation was practically suspended ex- cept for very light draft rafts and light draft crafts, practically the whole season. 2553 The little boats could run from intermediate points, but what we called the big boats were through boats from St. Louis to St. Paul. And, let me state, too, if I may be permitted to do so: that at certain parts of the river the water would be lower than at others. That is, there wmuld be more obstruction. For instance, the upper river would be low and some of the big boats would go up to certain points, and the little boats would then take their passengers and freight on above. That was quite a common occurrence. Quite frequently the boats would go to Hastings, Minnesota. The river from Hastings up was a very bad piece of river. The water was low and the big boats could not go all the way and they would connect with the smaller boats, and still that would make the through trip. They would take passengers and freight up to St. Paul and then bring passengers and freight back to St, Louis. Hastings from St. Paul is thirty miles; LaCrosse from St. Louis, is — well, I can’t tell exactly, — I think about 600 miles. 2554 We had a boat in that business taking a transshipment from a large boat at Hastings and carrying it to St. Paul. It was called the “Cheever.” It was a light boat, built purposely for low water navigation, very wide and with light power, in or- der to make her light draft. The draft of the “Cheever” was, oh, I should judge not to exceed 16 to 18 inches, empty. A sternwheel boat, about which there was some discussion a moment ago, — always draws more at the stern than the bow, for the reason that the stern is built out beyond the bearing-up capacity of the hull. That makes it heavier at the stern and light at the bow, and frequently we would put 20 or 30 tons on the boat, and she would draw no more than when empty. That was true of the 858 17/;? Sant, — Direct Exam. — 'Continued. ''Cheever.’’ She would carry her fuel and passengers and likely a few tons of freight, on 18 inches of water. That was a 2555 sternwheel boat, and the bottom was flat. Her draft at the bow was less than at the stern. The ‘‘Phil Sheckel,’’ that used to be on the upper river, I re- member her very well. 8he “Phil SheckeP’ was 110 feet long with a 26 foot beam. Her draft wasnT over 14 or 15 inches of water, a sternwheeler. That boat was built to run up the Chippewa Eiver. That was a very scanty stream of water. The water was very scanty, and she was built in connection with a lumber com- pany to run up to LeClaire, and up to points on the Chippewa River to carry up men who floated the rafts down and the freight, kitchen, and so forth, and the men lived on the boat, and when they brought the raft down she took them back. They find 14 inches of water on the Chippewa, at certain stages of the year. Sometimes it would get so low that that boat could not run, because the river would pretty near go dry. But when there was a great rise on the river, sometimes five hundred million feet of lum- 2556 ber would come down that river in a year. They would some- times have to wait with their lumber until a freshet or the rain came, and then they would go down to the Mississipi. I would just say I am familiar with this boat and I give the details because I afterwards owned her. We used her for several years on the Mississippi. In the towing of these rafts we used her as what you would call a bowboat. A bowboat is put right across the bow of the raft, and she steers or directs the bow of the raft, and now instead of taking one raft we take two down the river, and this boat was used for that purpose. The big boat was behind and was the propelling power, but this bowboat was the steering boat and kept the raft off of islands and obstructions. It pointed the course. We used the “Sheckel” on the Mississippi River about four or five years. We sold her and she is now at Miami, Florida, engaged in the building of the railroad from Miami to the Keys. She went there with her own power. Slie 2557 crossed the Gulf and went there in safety, — down the Missis- sippi and into the Gulf, and 1,200 miles out into the ocean, the bay. I remember a boat called the “Jeannette RobarJ^ and I think 859 there was a boat — I know more about the ‘^Jeannette Robar,’’ my father built her. It was a very light draft boat. She was built to run up the Minnesota River in her early days. She was about 150 feet long and 30 feet beam. Her draft was 18 to 20 inches; she was a very light draft boat. That boat was engaged in the transportation of freight on the Minnesota. The condition of water on the Minnesota River differed, but it was very desirable in those days to have light draft boats that would navigate as long as they possibly could. This boat was built especially for that trade. It was customary in the boat yards in the Mississippi in the periods when I was maintaining a boat yard, to build boats that were especially adapted for these shallow tributaries. They 2558 did carry on successful commerce on them. The ^‘Des Moines Valley’’ I think was built at Rock Island. I remember of seeing the boat and know of her. She was on the Des Moines River in the early days. I am not veiy well acquainted with the Des Moines River. I remember the Black Hawk” very well. My father built the first Black Hawk.” She was a little boat built purposely to run up the Rock River, a light draft and small craft to run up the Rock River. She was 100 feet long, breadth twenty-two feet, draft about sixteen inches, a very light boat. There used to be draw-bridges on Rock River at that time. I should think she would carry 40 or 50 tons. She was a small boat. 2559 I remember the ‘‘Enterprise” very well. She operated at one time. She was first operated on the Mississippi River below St. Paul, but she was afterwards taken around the Falls by land and operated above Minneapolis. They took her around on wheels, skids, blocks and tackle. They had to go seven miles by land with her. I mean, she navigated on the Mississippi above the Falls of St. Anthony. She was a very light draft boat. I don’t remember her exact size, but I remember her as a very light draft boat, in the same class of boats as the “Cheever,” if not lighter. There used to be a type of craft used on the Mississippi called ' ‘ ‘ wood boats. ’ ’ Those wood boats were flat-bottom boats with scow bows, made very light to go up the creeks and rivers and get 860 Van Sant, — Direct Exam, — Continued. wood and bring it out into the Mississippi, and propelled with poles. They are in use some yet. 2560 I remember a boat called the ‘‘Silas AYright,” very well. That boat was used on the Chippewa. The “Silas WrighC^ was built to operate on the Chippewa River, but they found that she was too heavy draft and so they built two hulls, put one on each side of her and rigidly fastened them to the boat to bring her up, and she successfully navigated the river there for years; at a depth of 12 or 14 or 16 inches of water, although she was originally built for a draft of 18 or 20 inches of water. I remember the “Lady Van Sant.’’ She is a light draft 2561 boat, 105 feet long and 24 feet wide; draft I would say 20 inches. She was what you would call a bowboat. I remember the “Harriet.” Her draft was not over 18 inches. She was in the same business, only she was two feet wider than the other boat; and was used on the Mississippi and these Other tributaries where the rafts come from. The “Keokuk,” we just built her last year. She made her first trip this spring. That boat is 140 feet long and has a 30-foot beam. She draws, trimmed up, I would say 26 inches. I mean by trimmed up, carrying 20 tons. She would carry 20 tons on that depth. 2562 As to the currents, the varying currents were, which I en- countered on the Mississippi River, — well, there are places where it it much swifter than others. The Moline chain is on the Upper Rapids. We have very swift water on the Lower Rapids; but the swiftest water I know of is on the Moline Chain. C ro ss-E xa mina ti o n . As to being able to say what the velocity of these currents are, or of these rapids, without having measured them, I think I 2563 would be a moderately fair judge. I have navigated them and navigated them with others, and lived practically in the engineer’s office. I never measured the current at anj^ point. I am able to esti- mate the rapidity of the current by comparing it with other points. I stated the swiftest place on the river; I can judge that, can’t I. As to how many miles per hour water runs at any particular place, — that would be more sometimes than at others. It would 861 be more when the water is highest. There would be a greater vol- ume to come down through the chain. The Court. The point is, how can you determine, Governor, unless you were an engineer and measured those things, what the actual velocity is! A. I cannot accurately. I said I cannot. Q. Even fairly accurately! A. I could only judge by what our boats — the usual time they would make up stream, and the time they make going up stream in this swift current. I can esti- mate in that way how much, perhaps, it is swifter than at other points on the river. 2564 Counsel for Complainant. I think if we have the ‘ geography, if a man knows the number of miles he is going to make and knows the number of hours it takes to make the trip, and then compares the velocities that he encounters on his way, those that are swifter and those that are slower, he would have a stand- ard by which, from long use, he could form a judgment. The Court. I donT think, for the purposes of a case like this, that that would be proper. Van Sant, — Direct Exam. — Continued. There has considerable work gone on in improving the Moline Chain. That work was instituted and carried on by the Govern- ment. I would just state now that they have built a canal so that we avoid going up stream through this swift water. With the work of making some of these improvements, — our boats were engaged with the contractors, chartered to them, and were on that work almost constantly. The Governments engineer’s- office by which that work was carried on was at Eock Island ; 2565 our office at that time was at LeClaire, just at the head of the Eapids, and this was the foot of the Eapids. The Eapids were about eighteen miles long, and we had a boatyard there at one end, and the Government office at the other. I was very familiar with it because we built their boats, their chisel-boats, built their dredge-boats, and chartered them steamboats, and was in constant communication with them. Q. State whether or not in the requirements as communicated to you by Government engineers for the purpose of getting boats 862 Vcni Sant, — Direct Exam. — Contimied. that would perforin this work, the velocities were stated to you by the Government engineers. Counsel for Defendant. That is objected to. The Court. Sustained. The Witness. Before these improvements were made, naviga- tion was actually carried on up stream against this swift current. In certain stages of water, certain boats would have to warp over the chain, especially Moline Chain. 2566 A boat would come up into the chain in the swift water as fast as she could, she would be either anchored there or hold herself there with her prow, and they would put a coil of line and an anchor out in a yawl. They would go to the side where the current was not so swift and there would be water enough for the yawl or boat, and they would go up to this point and cast their anchor and drift right down to the line, as it is a very easy matter, and then they would put a line on the steam capstan and wind up the line, after the anchor was laid. That was a common practice in passing Moline Chains. They used it until the Eapids were im- proved; well, from the time of the earliest navigation until say, 1868-9 or ’70, when the first improvement in the channel was made. 2567 Counsel for Complainant. Now, I will ask you. Gov- ernor, to take the case of a river, which for a period of three or five months each year, exclusive of the time it was frozen over and exclusive of the time of extreme low water, presenting a depth, which would range from fifteen inches to ten feet and upwards of water, and in a channel, which would range from 250 feet wide to a quarter of a mile wide, and which had a current which varied from almost an imperceptible current in some of the wide spots where it was a quarter of a mile wide and ten feet deep, to a cur- rent much of the way two and a half miles an hour, one or two places three and a half, one or two places five miles an hour, and one or two places seven and seven and a half miles an hour, the swiftest current in one place being in the shallow part, and in another instance where the water was somewhat deeper; a stream which had such course of sinuosities as appears on this McCul- lough Exhibit lA, this map which is before you. It is the one that is marked McCullough lA, and shows the course of the river from 863 Lockport, Joliet, down to the mouth of the Eiver Desplaines. That is a map that is drawn on a scale of two inches to the mile. I will ask you to state whether, in your judgment as a practical navigator, a stream possessing those qualifications would be a nav- igable stream. Counsel for Defendant. That is objected to. In the first place, the curves are a very important feature. It is impossible that 2568 a witness can know from a map two inches to a mile what the curves of the stream were. The general pronounced bends of the stream would be shown, but the curve from point to point would not be shown. It is objected to again because to state that it has certain spaces of practically a level character, no slope, and certain others with a fall of so much, without indicating within what limits that fall comes, and what the extent of the level is, gives no indication, it does not describe the river as the evidence shows it in this case, and from such a hypothetical question, no such judgment or knowledge of the river can be given to the witness that he can form a judgment on it. Secondly, that it assumes the widths of channels that have not been proved in this case. There are no such channels at the declivities and slopes as have been assumed in this question and they are not proved in the case. Now, to say that the river has in some places no slope and in some other places a slope of so many feet to the mile— it may be twenty miles of slope and one mile of level. I submit the whole question is not one upon which an intelligent answer can be made. Counsel for Complainant. If every word that counsel has stated is true, which we deny, but if every word of it was true, the question is proper as a hypothetical question. We have a riglit to show what it was. 2569 The Court. Eead the question, please. (Question read by reporter.) Counsel for Complainant. I will add to that that in one place about a mile, where there is an island in the stream, the chan- nel narrows up to one hundred feet and part of that narrow channel along the island narrows down to a little less than one hundred feet, about sixty feet wide. Counsel for Defendant. There is one other objection that I 864 Va?i Sant, — Direct Exam, — Continued. wish to make in addition to this made by Mr. Seott, that is, that the answer calls for a conclusion upon the word ‘‘navigable.” The question should be, whether the river in his judgment was capable of carrying commerce for useful purposes, whether boats could be taken up and down the river. We donT know what the wit- ness understands by the word “navigable.” Counsel for Complainant. I will accept the last suggestion as to the question and put it up a stream answering these qualifica- tions, if it would be such that boats carrying freight would be capable of being operated up and down the river. The Court. For commercial purposes! Counsel for Complainant. For commercial purposes. Counsel for Defendant. The question is still objected to. The Court. Governor, do you believe you have sufficient data to give an intelligent answer to that question! A. I think I have. 2570 The Court. You may answer it. A. In my judgment it could. Counsel for Complainant. Then I will ask the further question separately, in your judgment would or would not the stream pos- sessing these qualifications be a navigable stream! Counsel for Defendant. That is objected to. The Court. I sustain that objection. Cross-Examination, 2573 I worked in the boat yard when I was 13 or 14 years old. That would be about the year 1856. I began to run on the river as a business as a boy. Those boats that I have testified about and gave their draft, were usually light draft. A boat like the “Phil Sheckel,” 110 feet long, could carry a certain number of tons without adding very much to her draft. The capacity of the “Sheckel” in tonnage, freight tonnage, I don’t know; don’t remember. Her draft when loaded to her capacity would be three feet and a half. That would be usually true of all those boats, 2574 those smaller boats I have mentioned. They are generally about four feet depth of hull, and you can load them down to six inches of the guards. It is a fact, that the etfort was to built boats adapted to the small streams, so as to make them available for commerce, and wherever there was a river that could be used for commerce in some way or other, they built a boat to navigate it. In those early days they resorted to the rivers as a matter of course, if the river could be used, and they build some kind of a boat, if one were possible, to navigate every stream where com- merce can be carried on. These rapids at Eock Island, Moline — sometimes called Eoch Island, I notice, and sometimes Moline by Mr. Starr m- Pt- me, and sometimes the LeClaire Eapids, I think they are laid down 2575 in the Government report as Eock Island Eapids, extending from LeClaire to Eock Island, about fourteen and a half miles, and the fall in that distance is about I think twenty feet; I didn’t measure this; that would be a fall of about 18 inches to the mile. I know of Major Eutfner, but I never was acquainted with him, and he wasn’t there when I was about the Eapids. 2576 It is always dangerous to pass the Eock Island Eapids. This improvement I spoke of I think was taken up about 1868 or ’69. I don’t remember whether the first work was done in 1852 ; it might have been. I know they were very difficult of naviga- tion before any work was done on them, because we repaired the steamboats damaged on the rapids; it was quite a frequent thing to have to repair steamboats. The Missisippi Eiver was nearly half a mile wide, I should say about that. Some places it was much narrower and some places a little wider. At Moline Chain it would not be a quarter of a mile wide. That is Moline Chain, which is now shut off by the dams. When we are passing the rapid places like that in the 2577 river, we have to follow the channel ; the channel there is quite narrow, but deep. The channel at the narrowest point is I think 200 feet wide. That has been excavated by the Government by means of cofferdams. As a navigator, without knowing the width of the channel where I was, to determine whether it was navigable or not, and at the place where the velocity was the greatest, without knowing the width of the channel but knowing the velocity, I would be able to state whether or not the river at that point was navigable. If 8()6 Van Sant, — Cross-Exam. — Continued. I know the depth of the water in warping, I would carry the 2578 cable and the anchor, a thousand or 1,200 feet. It depends on the length of the line, carrying it along the side of the channel where it was not so swift. The movement of the boat during the warping is as follows: — They steer the boat just the same. They use her wheels but this helps the boat over. Her power does not quite overcome the cur- rent and they pull her up with the anchor. They usually try to get the anchor above the chain. If not, they lay it twice. They are supposed to pull in the channel. When I say such a river as de- scribed in the hypothetical question used by Mr. Starr, can be used for boats, I refer to light draft boats, I should judge 125 to thirty or forty feet in length. For useful commerce, the dimen- sion of a boat would depend upon the commerce and the na- 2579 ture of the stream. If you want to build a boat of sufficient light draft to navigate the river to make it profitable, I say a boat without a cabin and a very little upper works, built with veiy light draft from the very start, you can make her so that she will draw not to exceed, say, about twelve inches of water; about one hundred and forty feet long ; thirty feet wide, 26 to 30. Q. Now, Governor, will you please consider a river of the de- scription which I will now state and tell me whether you think such a boat as you described could be successfully navigated on it ; beginning at a point sixteen miles from its mouth. We are now coming down to the mouth on this part, and are going to consider whether it is navigable or not. No, we will begin higher up. We will begin at a point 20 miles from its mouth; and in the first four and a half miles a fall of 42^ feet, in the next 5,500 feet a fall of nine feet ; that is to say, one and eight-tenths feet per thousand ; then the natural channel there being less than 100 feet in width in places; the next stretch being 2,000 feet with a fall of 3.75 2580 feet, there then being a level of 44 miles, then a sharp curve and a fall of 5.5 feet in 2,000 feet and a channel 60 feet wide. A. How deep? Q. About 15 inches deep ? I say channel 60 feet wide, I mean the entire river. A. The whole water of the river goes through there. 8G7 Q. Fifteen inches dee]), and as described in the evidence in this case, boulders protruding above the surface? A. i^es, sir. Q. Then a distance of two miles of comparatively level water, and then a fall of 3.2 feet in 2,000 feet, being 1.6 per 1,000 feet. Now, I will ask you to state whether a river of that description, without improvement of the channel, could be navigated for the purposes of useful commerce. Counsel for Complainant. I object to that, if the Court please. The Court. He may answer. The Witness. You will have to state that question again. (Question read by the reporter.) Q. Before you answer the question, assume wherever I have said ^‘channel,” that I mean the width of the river, and not the width of the channel! A. Now, let me ask a question. You say whether the river is narrowed up to 60 feet there are boulders protruding ! Q. Yes, sir! A. How close together or how many boulders are there! 2581 Q. They are so close together, according to the evidence here, that a canoe has to dodge to get through them. Counsel for Complainant. There is nothing in this case on either side, in my judgment, to hypothecate that question on, but I will not object. The Court. I cannot judge what the defendant’s case is going to be, but they have a right to put tjheir hypo'thetical ques- tions. Counsel for Defendant. But, your Honor has a good memory and Mr. Clements, their witness, last night testified as to boulders. Counsel for Complainant. Not in the way you say. The Witness. Now, I want to be right on this. Now, what is the fall in the first 5,500 feet! Counsel for Defendant. That is not first, but in 5,500 feet the fall is nine feet. The Witness. What is the first 42 feet! 868 J^an Sant, — Cross-Exam.— Continued. Counsel for Defendant. That is a fall of 42| feet in five miles, a little less than five miles, as a matter of fact. A. Well, if that stream where the 60 -foot channel is — Q. 60-foot river. A. Sixty-foot river has boulders sticking up, so that a canoe only can dodge them, why, it could not be navigable. I would say that in my judgment. That is answering the question on those suppositions. That is the point right there. If those boulders are sticking up there, so that it takes a 2582 canoe to dodge them, it would not be navigable for a steam- boat. That is distinctly understood. Counsel for Defendant. Assuming now, for the purposes of this question, that the boulders were not there, and that it was sixty feet wide and fifteen inches deep. A. Well, are the boulders there? Q. Yes, sir, they are. A. But I am asking a question. Q. Yes, sir, they are there. People walk over them dry-shod in summer. But, assuming that they were not there and that that river is sixty feet wide and you have a fall of 2.78 feet per thou- sand feet. Can you take a steamboat by them, in its natural condi- tion ? A. I could if the water was deep enough. Q. I said, fifteen inches of water. A. I think it could be done. Q. For the purposes of profitable commerce? A. Oh, yes, sir. Q. On 15 inches of water? A. Oh, yes, sir. Q. On such a boat as you have described? A. On such a boat as I have described. 0. The boat which you have described when it was loaded would rest on the bottom in that place? A. I would not load it so heavy. I would load it according to the water. I have always done that. Q. How would you go up that slope of ten feet a mile, in a 60- foot river, with a boat over 100 feet long? A. I might have 2583 to warp. Q. You would have to warp if you could do it at all, wouldn’t you? A. Well, I don’t know. 869 Q. Governor, did you ever go up a river in a channel sixty feet wide at a slope — river 60 feet wide, at a slope of ten feet to the mile, and if so, where? A. I never did; no, sir. Q. The Eock Island Eapids are about as bad as you care to navigate, arenT they? A. I have never had a bit of trouble with our boats passing Moline Chain. Q. But you helped to repair others? A. I repaired others, and helped others run over it, but I built my boats to run them through the chain. And they always did it. Q. You never heard of anybody building a boat to run up the Desplaines Eiver? A. No, sir. Q. And you never heard of rivermen talking about the Des- plaines Eiver as a river of commerce, did you? Counsel for Complainant. I object to that. The Court. Objection sustained. The Witness. Shall I answer the question? The Court. No. 2584 Q. Now, Governor, as a man who has spent his life in this business, taking such a river as I have described 20 miles long, with those natural difficulties and obstructions, and there being no river above atfording profitable commerce, so as to make it worth while to overcome those obstructions, would you say that that 20 miles of river in its natural condition would be an avenue for profitable commerce? 2587 Counsel for Defendant. Insert in the question ‘^overcom- ing those obstructions by methods of warping or cordelling, which have been described. ’ ’ (Counsel for complainant objecting on the ground that the hypothetical question was not a fair one considering the actual facts in the case.) 2589 The Witness. I supposed your question would be along the same lines as the question which the other side proposed, and I answered it. Now, if the facts are as you state them, and upon the assumption that there is nothing on either bank or nothing at the head to come down the river, no freight or no peo- ple, it would not pay to navigate the river. 870 Assuming that at this particular point where the fall was 5X feet in 2,000 feet, that within that 2,000 feet there was a very sharp bend of the river, as to how that would affect the ability to bring a boat up in that velocity, it would make it more difficult, 2590 but we frequently turn very sharp turns in the river. I never have done that, because I never navigated a river that had those questions to meet. Going down a point like that I have de- scribed, in such a boat as you have described, we would have to what we call check’’ around a place like that, back off and go ahead, back, back, just twist the boat around those points. We did that ; we did it safely. 2599 Whereupon counsel for complainant offered and read in evidence the deposition of Geo. B. Fox. (For rulings on said deposition, see Abstract of Depositions, supra, page 329.) Thereupon complainant offered in evidence a certified copy of United States Letters Patent No. 733,010 for the Propulsion of Vessels, being the Coen patent referred to by the witness Fox. (Objected to as incompetent, irrelevant and immaterial. Ob- jection overruled and said document received in evidence. Ap- pendix II, p. 3891; Trans., p. 5860; Abst., p. 1725.) Whereupon counsel for complainant offered and read in evidence the deposition of William L. Sackett. (For rulings on said deposition, see Abstract of Depositions, supra, page 218.) William H. Zarley, a witness for the complainant, testified as follows: 2600 My name is William H. Zarley. Eesidence, Joliet, Illinois. Am County Surveyor Will County. Have been surveyor for about four years and understand making measurements of lands, distances and things of that kind; know where Treat’s Island 2601 is in Desplaines Eiver, was there yesterday afternoon. Went at the request of Mr. Starr and Mr. Eeeves. Had with me Mr. O’Callahan and my assistant. I made measurements of the widths of the two channels of the Desplaines Eiver, one on each 871 side of Treat Island. I mean the width of the water in each channel. I measured the width of each channel at the head of the island and at the foot of the island and at the narrowest points. I made these measurements of both channels. The right hand 2602 channel at the upper end of the island is 527 feet wide. At the foot of the island it was 209.3 feet. At the bridge or cen- 2603 tral part of the island it was 145 feet. That is the width of the river. We considered the place at the bridge the narrow- est point, it was 145 feet in width. The left-hand channel at the head of the island was 276.6 feet and at the foot of the island 185.3 feet and at the narrowest point 128 feet. The water is now wider than in the normal stage of the river. At the head of the island 2605 in the right-hand channel there is very little difference be- 2606 tween the width of the river now and at its normal stage. Not very much difference between the width now and at the normal stage at the foot of the island in the right-hand channel. In the middle or narrowest point of the right hand channel it is now probably fifteen or twenty feet wider than at normal stage. In the left-hand channel at the head of the island it is about what it is at the normal width. There is a swamp there with shallow water but we did not count that in the width of the river. At the foot of the island in the left-hand channel, where I said it was 185 feet yesterday, that, too, represents about the normal flow but the river was wider there yesterday than 185 feet. I meant the 185 feet was about the normal width at that point. The narrowest place in the left-hand channel was 128 feet and that is about the normal condition of the river. C ross-Examination, Am thirty years old. Lived at Joliet all my life. My testimony as to the normal stage of the river refers to the normal stage since the Drainage Canal water has been turned into river. 2608 Re-direct Examination. The right-hand channel of the river at the head of the island is some twenty-five to forty^ feet wider than it was in its normal condition prior to January 17, 1900, when the water of the Drain- age Canal was turned in, and that channel at the foot of the island 872 Zarleify — Re-direct Exam. — Continued. about twenty to twenty-five feet wider and at the narrowest point about fifteen feet wider. In the left-hand channel at the head of the island it is about twenty-five or thirty feet wider than the nor- mal condition prior to January 17, 1900. At the foot of the island the width is about the same and I would say that at the narrowest l^oint it was about the same that it is now. 2609 Re-cross Examination. Have no personal knowledge as to the condition of the river before the water of the Illinois and Michigan Canal was turned in in 1871. I never made measurements of the points prior to yes- terday. My comparison with the normal stage of the river since the Drainage District turned in its water is an estimate of what I think the change was. I would not place that estimate as against official surveys, if such have been made. Wherever I have said channel I mean the river itself. (Witness here indicates on map the location of the head of the right hand channel.) There is an- other little island in the right hand channel between the head 2610 of Treat ^s Island and the narrowest point given in my state- ment. I did not measure the channel on either side of that little island. That little island is about 150 feet wide, I guess. The greatest dimensions I gave were just at the point where 2612 you enter the channels on either side of the island at its head. Attention of witness called to page 25 of Ogle & Company’s Plat Book of Will County, Illinois, 1893. 2613 Counsel for Defendant. You have put a line across the river marked ‘‘A,” is that the point where you took the first measurement f A. Yes, sir. What appears on the map in the right hand channel below the head of Treat’s Island as a small island is there, as a matter of fact. I did not measure the stream on either side of that island. My measurement of the left hand chanel was taken at the point of entry to the channel, at the place where I have marked it 2611 “B.” What appears to be a continuous roadway across the right-hand channel indicates the place where the bridge is. My measurement at the foot of the island are marked “D” and ‘‘E.” The place marked ‘‘F” on the right-hand channel is near the bridge and is the narrowest place. We did not follow the bank of the river on the east side yesterday. We measured the two points at the upper end of the island and we came down about the middle of the island across the mill race that is in the island and went down the west side of the island, and we oame back 2615 up the river on the west side. We crossed the race on the bridge. We saw the whole of the river on the west side; did not follow the river along the east side, and think I am prepared to say that those narrowest places were as a matter of fact the narrowest places in the river. I think I can swear to this. I think I can swear that the river at the bridge is narrower than it is one hundred feet south of that. Map of Treat’s Island and vicinity surveyed in accordance with Act of Congress, August 11, 1880, under direction of W. L. Mar- shal], Corps of Engineers, U. S. Army, by L. L. Wheeler, U. S. As- sistant Engineer, 1888 and 1889, which is identified and marked ‘‘Zarley 1” — I see what it is. I don’t think I have had occa- 2617 sion to use it. (Witness not sure that he has ever seen this map before.) With this map before me I think the point in the left-hand channel that we measured as the narrowest point is, • in fact, the narrowest point. (Witness indicates point of bridge in left-hand channel.) This point marked I marked 2618 the point of the bridge in the right hand channel as ‘‘H.” Tlie place where I took the measure at the head of the island is marked The points of measurement at the foot of the island are marked ‘‘K” and ^Mj.” The left-hand at the top was marked The smaller island in the right hand channel of the river I should say is somewhere in the neighborhood of 150 feet wide, I think about 800 feet long. Q. You took no measurements of the size of the river from any point on that island to the shore or to the main island, did you I A. No, sir. 2619 Q. In what manner did you take the measurements I A We had a fixed base line along the island and triangulated across. 2620 I suppose this map is drawn to scale. It took about an hour and a half to make these measurements. It has been 874 ^ Zarley, — Re-cross Exam. — Continued. raining most of the time for a conple of weeks. I should say 2621 the river is np two or three feet above normal flow. Well, by normal flow I mean the ordinary flow in the summer. This is Sanitary District water added to the low water stage in the Desplaines River. This normal flow continues generally during the summer. When I say normal width I mean width in the summer without any high water. There is very little difference between the width of the right-hand channel at the head of the island now and its normal width. At the bridge in that channel the difference is possibly fifteen or twenty feet, I cannot tell within a few feet. At the left-hand channel at the head of the island I would say that the measurement now would represent the normal width. A part of what is swampy on that side, we did not take into account, but the parf we measured is just as wide in summer as it is 2624 now. At the foot of the island on the left-hand channel the measurement I gave would be the normal width, and the nar- rowest point would be the same too, and the east channel the nar^ rowest point yesterday would be about normal condition since 1900. On the right-hand channel, the narrowest point the differ- . ence between normal condition and now would be about fifteen feet, the difference somewhere about fifteen or twenty feet. 2625 The map marked ^‘Zarley Exhibit 1” offered and received in evidence. (Atlas, p. 3949; Trans., p. 6567; Abst., p. 1924.) At the point we have marked the scale shows the river to be about 110 feet wide. The scale used is 300 feet to the inch. 2627 Further up the stream where there is a point marked ‘‘71,” the width shown by the scale is practically the same as at the point marked “G. ” At the point you pointed out to me it is more than 100 feet, it is about 110 feet at that narrow place. On the east side of the small island, measuring, it shows about 2628 75 feet. I marked the same “M.” Measuring from the map, the left-hand channel at the foot of the island is 115 feet. .U the lower part of the island on left-hand channel, measuring from the map, it appears to be a little over 210 feet. That is 2629 where we had 185 feet. Measuring again, I think that width to be about 215 feet, but it may not be exactly the same place I had it before. In the left-hand channel going down at the final tip of the island, close to that marked“ Boring No. 17” it shows about 115 feet. At the point in the right-hand channel where we measured it yesterday as 527 feet, measuring by the map, it shows 520 feet. In the left-hand channel where I gave the figures as 276.6 feet, measuring by the map, shows a Jit tie over 270 feet, about 275 feet. What I call normal is just from my general knowledge of the way the river is, not from measurements. What has been called the mill race there is no connection with at the present time. I have heard it called the mill race, that is all I know about it. There has been no mill race there within my mem- ory. The narrowest place of the right-hand channel on the right of the little island in that channel is about 90 feet, that is the point marked 2632 Field-note Exhibits 1, 2 and 3 are offered with the original certificate. (Objected to, objection sustained.) Then otfered with the new certificate, and there being no objec- tion, admitted in evidence. 2633 Here follows the first certificates of J. S. McCullough, aud- itor public accounts of the State of Illinois, to the three docu- ments above mentioned. 2635 Thereupon counsel for complainant offered and read in evi- dence the deposition of John M. Snyder. Whereupon counsel for defendant read the cross-examination. (For rulings on same see Abstract of Depositions, supra, p. 250.) Thereupon counsel for complainant otfered and read in evidence the deposition of Leon McDonald, a witness for complainant. (For rulings on same see Abstract of Deposition, s'utpra, p. 265.) Thereupon counsel for complainant otfered and read in evidence the deposition of Charles Dimmick, a witness for complainant. (For rulings on same see Abstract of Depositions, supra, p. 500.) Thereupon counsel for complainant otfered and read in evidence the deposition of J. H. Hildebrand, a witness for complainant. (For rulings on same see Abstract of Depositions, supra, p. 292.) 2636 Thereupon Hildebrand’s Exhibits 1, 2 and 3 were admitted 876 in evidence. Said exhibits appear in Atlas, pp. 3950, 3951, 3943. (Trans., pp. 6555, 6569, 6571; Abst., pp. 1922, 1925, 1926.) Thereupon counsel for complainant offered and read in evidence the deposition of William Kramer, a witness for complainant. (For rulings on same see Abstract of Depositions, supra, p. 354.) Thereupon counsel for complainant offered and read in evidence the deposition of Benezette Williams, a witness for complain- ant. (For rulings on the same see Abstract of Depositions, supra, p. 336.) 2641 The following documents were admitted in evidence, to- wit : Sanitary District of Chicago, Tabulation of Grange reading for the years 1900, 1901, 1902, 1903, 1904, 1905, 1906 and 1907, respectively, Cooley Exhibits 4, 5, 6, 7, 8, 9, 10 and 11. (Ap- pendix II, 3902, Trans., p. 6014; Abst., p. 1730.) Also pages 478 to 5^0, both inclusive House Documents No. 263, 59th Congress, First Session, published by United States Government, marked Cooley Exhibit 12. (Appendix II, p. 3901; Trans., p. 6011; Abst., p. 1730.) 2642 Also pages 944 to 962, both inclusive, from document en- titled, ^^Proceedings of Board of Trustees of Sanitary Dis- trict of Chicago, Eegular Meeting Wednesday, November 27, 1907, 2 o’clock P. M.,” marked Cooley Exhibit 13.” (Appen- dix II, p. 3903; Trans., p. 6028; Abst., 1730.) Map marked Cooley Exhibit 15 is received in evidence. (Atlas, p. 3953; Trans., p ; Abst., p ) 2646 Lymax Cooley, recalled, testified: Direct Examination {Continued). The date I visited the site of this dam with Mr. Benezette Wil- liams was, I think, the 14th of April. I had with me at that time two prints, one the general print of the Desplaines River, from Lockport to its mouth, the other was a local print showing the works projected, at the mouth of the stream by the defendant. 2647 I received that blue print from J. W. Woerman, Chief En- gineer in charge of the work, upon my request to the manager of the company. The blue print shown me maked 'topographical map of the power site of the proposed Morris Hydro-electric Light Plant for the Economy Light & Power Company, scale fifty feet equals one inch, D. W. Mean, Consulting Engineer, is the one which I received. That was referred to and discussed in the course of the examination when Mr. Benezette Williams was there. 2648 I have read the contract between the Canal Commissioners and Harold F. Griswold, which is Exhibit of the bill. The requirements of that contract of the party of the second part I state as an engineer, could not be performed for less than the sum of $100,000.00. Counsel for Complainant. I direct your attention particularly, ]\Ir. Cooley to Clauses 6 and 9 of that contract. The sixth says: ‘Ht shall be the duty of the said party of the second part, subject to the direction of the Canal Commissioners or other officer or agent, as hereinafter indicated, to raise the towpath or bank of the Illinois and Michigan Canal from its present height not less than two feet and to any additional height that may be necessary to prevent overflow and to perpetually thereafter maintain the same in good condition. The said rais- ing of the same towpath shall extend from a point in said Grundy County where dams or other structures of the said party of the second part intercept said towpath bank to Lock No. 7 in Section 17, Township 34 North, Range 9 East of the-Third P. M. ; and when raised the width of the top of the towpath bank shall conform to the width of the towpath as it exists at present.’^ 2649 The ninth clause is as follows : ‘ ^ That the said party of the second part is hereby authorized to enter upon the lands or premises of the State of Illinois, part and parcel of the Illinois and Michigan Canal, and to enter upon said canal itself in the manner and to the extent that shall be necessary to raise and maintain the towpath as above provided and to attach and build said dam or other works on to said towpath bank as herein provided, and to re- pair, maintain or renew the same as shall become necessary to the preservation thereof.’^ Then I direct your attention to the third whereas,” the final whereas” before the ^ therefore” of the contract: ‘AVhereas, said party of the second part is desirous of ob- taining the right to use, overflow and damage (in such man- ner as will not interfere with navigation on the Illinois and Michigan Canal) so much of the said property as may be nec- essary in the construction of the said dam and other works, 878 Cooley, — Direct Exam. — Continued. and the improvement of said Desplaines Eiver and in the deep ening of the channel of said Illinois Eiver. ’ ’ I also call your attention to Clause 4 of the contract : 2650 ''That said party of the second part shall have the right to erect, attach, repair and maintain said dam and other works or structure up against the towpath bank of the Illinois and Michigan Canal, in Section 25, Township 4 North, Eange 8 East of the Third P. M., Grrundy County, Illinois, but not so as to interfere with the use of towpath in connection with said canal. ’ ’ Q. I ask you as an engineer, Mr. Cooley, whether it is practic- able to do the things provided by Clause 6 and Clause 9 which I read first, in such a manner as will not interfere with the naviga- tion on the Illinois and Michigan Canal? A. It is not practical to do the things provided in Clauses 6 and 9 so as not to interfere in any manner with the use of the towpath in connection with said canal. 2652 The Desplaines Eiver in 1886 and 1887, before Sanitary District of Chicago had interfered, the Desplaines Eiver, 2653 was a navigable stream. The navigability has been ma- terially increased by the increase in depth and by the in- crease in the duration, or made continuous throughout the year. The Desplaines Eiver from Dam No. 1 to its mouth, since the turning in of the waters of the Sanitary District of Chicago, is a navigable stream. Q. Is there any question, gentlemen, that this blue print rep- resents the dam which is the subject of this lawsuit. Counsel for Defendant. No question. 2654 The Witness. The dam, meaning thereby the structures which close the river, extend from the towpath bank of the Illinois and Michigan Canal across an intermediate strip of land, across the bed of the river, the opposite bank and for some dis- tance further. It has an elevation of 75 feet below Chicago datum and about 22.5 feet, as I remember it, above the lower part of the river bed. The crest of the dam is above the level of the bottom of the Illinois and Michigan Canal. Taking the tow- path as shown at the point upon the exhibit of the company as 84 feet Hennepin datum, the crest of the dam is 77 feet datum, Hennepin datum, and they have used it, making a difference of 879 Beven feet. I would explain there that the official bottom of the canal is six feet below the water line, something more than a foot. I had assumed two feet below the top of the towpath but I am not sure about that. 2659 Q. You may state what is re(|uired by proper practice on canals in this latitude in the matter of emptying them of water during the winter months? A. It is customary to empty the canals of water during the closed season. They consider it better practice in maintaining the canal to do that, rather than to keep the water in. I do not know any specific theory except that it has always been done. 2660 There are very bad effects and were very bad effects for some levels on the Erie Canal due to ice shoves, the ex- pansion of ice upon the bank, and I assume that it is in part for that reason, — the forming of the ice and the shoving of the banks and the slope. It has been the practice of the Illinois and Mich- igan Canal to empty the canal. I have seen portions of it so emptied and on the summit levels the custom has been to retain the water in the canal from here to Lockport. I have never seen the particular level where the site of this dam is in the win- ter time, so I could not give positive information as to that par- ticular place. The volume referred to as containing the maps on the navigability, the profile is survey of 1883, as reported by Capt. W. L. Marshall in 1886, volume labelled Survey of Water- way from Lake Michigan to Illinois Eiver at La Salle, Illinois,’’ and on the inside, beginning with the designation House 2661 of Representatives, Executive Document 264, Part 2, 51st Congress, 1st Session.” After leaving the stand I will take out and mark with my name the ones that were assembled or that were referred to. Q. A further instruction appears upon the profile : ^^The data has been compared with that of surveys of 1889, 1900 and of 1902-1904, and represents the official levels of the last survey.” Are those surveys there referred to indicated in the maps which are part of what you have called the Survey of 1904-5, as pub- lished in Document No. 263 in House of Representatives, 59th Congress, 1st Session. A. It is the same. 880 Cooley, — Direct Exam. — Continued. The plats there show for publication purposes, the data on a small scale. We used the large scales which are not in that par- ticular — we got them from the U. S. Engineer’s office. 2662 Cross-Examination. I understand that the water is not let out of the canal on the summit levels in the winter. The Channahon level begins at Joliet. Have seen it at Joliet in the winter and the water was not out of it where I saw it. The level of the canal below where the Dresden Heights plant is being constructed is the Au Sable level. I have never seen that in the winter. It would not be pos- sible to let the water out of the canal and use it in supplying water for hydraulic purposes. Since January, 1904, I under- stand the AuSable level has been supplying power at Ottawa. I understand that that is so since the breaking of the feeder at Dayton on the Fox Eiver. The water has been passed down 2664 through this level to Ottawa under these conditions. I do, indeed, feel a great interest in the outcome of this suit. I began my observation and study of the Desplaines River about 1885, that was the first systematic study of the question that I made. I became’ interested in it as early as 1878. 1885 fur- nished the opportunity to present the proposition in connection with the drainage of Chicago of the possible development of a deep waterway down this river. A very considerable portion of my time has been occupied in the direction of making that plan a reality. I have regarded it as necessary for the State to con- trol the flow of water and the river-bed in its own proper 2665 right, whether by this suit or some other. I have deemed it essential as a matter of course, that whoever improved the river, if it be the State or the United States, would necessarily control the river-bed and the flow of water therein. In the re- port of the Internal Improvement Commission, submitted in 1907, I first advanced the idea that the State should control the water- power so as to derive the means to pay for the improvement. I worked up a complete exhibit on the waterways question in 1893 and 4, and there was some matter published in that connection. I would not say at the moment that the financial scheme of 1907 881 was covered by it, and I would not say to the con- 2666 trary. Q. IsnH it true that the financial plan of having the State assume the ownership of the water-power was developed by you, when you found that your plan involved such expense that it was impossible to carry it out unless that were done? A. No, that is not true. It is true that the scheme of 1893 and 4 which was pre- sented to the Legislature, that we did succeed in getting a Com- mission Bill for a waterway commission which was vetoed by Governor Altgeld. At that time it was contemplated that the State would take the matter up as a result of an examination by the Commission which had been provided for. Governor Altgeld vetoed the hill and made his specific objection to the hill on the ground that the State could not enter upon that kind of an im- provement. The question of whether the State owned or did not own the bed of the stream was never a subject of discussion or doubt in my mind. The theory was not advanced that the State was the owner, it was taken for granted by myself and by 2668 all the reports that I have ever read and by all of the peo- ple that I have discussed the matter with up to the time of the interpolation upon the stream of the projects of the Economy Light & Power Company, that the title to the bed of the stream was owned by the State. There is not an official report that I have ever read that assumed to the contrary. (Last statement stricken out.) I referred in a previous answer to the reports — the exhibits before the Legislature of 1893-4, which I prepared, but I am unable to recall at the moment, whether that matter was discussed in that connection or not. I think it is correct that in my testimony before the Legislative Committee in Springfield which had this matter under consideration last winter, that I an- swered that I had not included the development of water-power by the State in any official report. I do not know of any affirma- tive act either of the State or Federal Government showing 2671 the intention to develop water-power in connection with the Desplaines Kiveiv prior to 1907. Neither the State nor Fed- eral Government have contemplated developing water-power in connection with Desplaines Biver project, if you come to strictly legal proposition, but the matter has been under consideration by 882 Cooley, — Cross-Exam. — Continued. myself and by officials ever since I can remember. I don^t know that I am the author of anything that appears in the Governor’s message. The Governor has been good enough to ask for my advice in connection with his message and other matters of State government. I did take part and endeavor to procure passage by the Legislature of the bill under which this suit is brought. I was there at Springfield throughout a large portion of the session of the Legislature up to the time that this bill was passed. 2674 I am the identical fellow who swore to the bill filed in thig case. I was in Nebraska City in 1878 and 1879. During the last two years I was at Nebraska City, I had oversight over thirteen works on the Missouri Eiver from Yankton to the mouth, and had general supervision of, and investigation of the physical data relating to the western rivers in general so far as that of- fice was concerned. I do not mean to be understood that I had supervision generally of the work of improving the Mississippi and other western rivers, aside from the Missouri. I did do work, or made surveys, and investigation of data respecting the Missis- sippi Eiver. Such data as was gathered in regard to all western rivers, relating to the records of gauges at different sides, the measurements of discharge at different points, the studying of the movements of stream beds at different points, and all matters concerning the phenomena of the streams. The Missouri Eiver, if I remember, is about 2,400 miles from the mouth of Ft. Benton. Its drainage area is five hundred thousand square miles. We 2675 know that the low water discharge runs down to about 25,000 or 26,000 cubic feet of water per second. The high water of 1881 ran up to about 400, nearly 450,000, and the great flood that carried out everything, I think it reached nearly 2676 600,000. That river has the April rise and the June rise. The water does not usually run out until sometime in August. The low water velocity of the Missouri Eiver differs very much under local conditions and circumstances of the bar crossings. In pools it is nominal. At bar crossings it will run to 2, 24 and 34 miles an hour, and in exceptional cases, even 5. The flood ve- locity is from 5 to 7 miles per hour generally speaking from Sioux City to the mouth. The general slope of the river averages between 10 and 11 inches to the mile. The ordinary low water depth is about 2^ feet and it ranges up to the top of the bank 883 10 or 15 feet. I consider Major Suter pretty good authority on the Missouri River. I do not know that there is any better. If he states that low water is 3 feet I would say that he is mistaken. I was working out on the Nebraska City works to maintain and improve navigation. Q. Was it not particularly at Nebraska City for the pur- 2678 pose of protecting the water front from destruction! A. The law says otherwise. Q. How! A. The law said otherwise. Q. We are not speaking of the law we are speaking of the fact! A. I assume the fact to be responsive to the law. The protection of the banks was part of the work ; we also built banks for the purpose of controlling and directing the flow over the bars. It has always been a part of the policy of improving the river and has always been regarded as a necessary element in such improvement. It has always been the experience that a large percentage of dykes go out and prove a failure. The pro- tection of the railroad bridge at St. Charles was an incidental part, if we could not maintain the river under the bridge, it could 2679 not he navigated. Well, you may say that up to a very re- cent time the work has been experimental, or has not settled down to a state of practice at which it could he definitely said as to whether you could hold a hank, or direct the current with 2680 certainty within the limit of cost. I have kept pretty close watch of these great highways of commerce, the rivers of the country. There has been some local use of the stream (Mis- souri River) that I know something about. The general use of the stream has not been maintained. The last I heard of it a com- pany at Kansas City was about to put a barge line upon the stream a few months ago. I don’t know whether they have actually done so. I do not think it is true that for the last twenty- five years there have been reports about somebody who is going to put some sort of a line on the Missouri River and these lines did not materialize. There were lines when I was on the stream in actual operation between Kansas City and the mouth. I be- lieve they have disappeared. We had general maps of the stream (Missouri River) which were in the nature of recognizance maps and had under the direction of the office which I was connected with 884 Cooley, — C ross-Exam.— Continued. a survey party that actually reached, I think, Three Forks, 2681 I think in 1890. They were surveying the river in 1884. I don’t know that Mr. Woerman had charge of the level party on that survey and that it was done in 1890. The answer to 2682 which I refer is say we had a survey party which was making a complete survey of the Missouri Eiver whose ope- rations extended up to the Three Forks above Fort Benton. I don’t know when it was completed. It was not completed when I left the river. I received some maps that were compiled later. I do not remember further about navigation above Fort Benton than that there were reports describing the upper stream; I believe there were some small boats running upon Hie river, the Jeffer- son or the Gallatin, I have forgotten which, above Helena. I do not undertake to give definite information as to any part of 2683 the stream above Fort Benton. The work on the Mississippi Eiver referred to as the Plum Point Eeach is about forty miles long and in high water 10,000 feet wide. I have seen the bar four feet above low water line all the way across. At flood stages the water would be 25 to 30 feet deep and at low water we have got points as low as 7 feet, not in every year but in some years. I would not undertake to say against what current we took the boat we had at Nebraska City 16 feet wide, and possibly 2^ to 2684 3 feet deep and from 60 to 70 feet long, 40 to 60 tons. We propelled it and we got up the river against any current that was in the stream during season of 1878. The sweeps were used for the channel, for steering the boat in crossing, and we had sails we could use when the wind was proper and at other times the boat was cordelled by means of a line and men on the bank along the shore. The sweeps were not ordinarily used for the propelling power but they would be used for crossing the stream. The strongest current that we propelled that boat against under those conditions, was three or three and a half miles per- haps. I want to explain further that we operated boats by Cor- dells and at Glascow through the flood of 1874, and to do that 2685 we handled them there against much higher velocities, five or six miles. I think that the current of 12 miles per hour which we measured at Wyoming Bluff was not reported in any Government report. We were engaged at that time in covering some 16 miles of river by a system of cross sections for the pur- 885 pose of tracing tlie movements of the bottoms and that was one of the regular series of cross sections that was found in that condition at the time I described it. I have never seen a boat personally climb a 12 mile current except as w'e had to deal with them in measuring that cross section. 2686 I have heard of Major Rutfner, who is an engineer of the army. He was on the Mississippi with headquarters at Quincy at that time, and later he was at Butfalo. I don’t know of his connection with the lower Mississippi. The highest velocity that I have ever seen a boat cordelled against is five or six miles, I think. In cordelling, the banks must be accessible, of course. If the banks are wooded it makes cordelling difficult, but in the history of the Louisiana purchase a towpath route was reserved the whole length of the Missouri Eiver. If there was no towpath and the bank had trees growing down to the water, that would render it more difficult. The Court. What was that statement about a towpath re- served by the United States Government? The Witness. No, in the cession of the Territory of Louisiana to the United States in 1803, a towpath right was reserved the whole length of the Missouri River, as I recall. 2687 I am only familiar with the Gasconade River by the of- fice records and seeing it at the mouth. I think Vienna is 100 miles from the mouth. I do not know that the Government has built any locks in that hundred miles. There were none there in my days. The Ohio River has reached a stage as low as 2688 1,500 cubic feet per second, I do not remember the year. The subject of the ratio of dilution in the Sanitary Canal was a very graphic one in my mind as the responsibility for fix- ing that was upon me. I don’t know what the standard low water for the Ohio River is. 1867 was taken for several of our western rivers. I say, to the best of my recollection, knowledge and belief that the flow of the Ohio River was 1,500 cubic feet per second. I remember the fact of using them at 90,000 feet and putting them in my memorandum at the time, 90,000 cubic feet per minute. 2689 That was somewhere between Pittsburg and Beaver. It was known as a Glass House Ripple. 886 C ooley, — C ross-Exam.—Con tin ued. Q. You have testified that the Ohio at times in the channel got down as low as eight to ten inches. Will you name any place in the Ohio Eiver where a low water record of eight to ten inches was ever made? A. That was made — the figures that I have in mind in connection with this 1,500 feet discharge as the depth upon the ripples between Pittsburg and Beaver did not exceed that. The place was between Beaver and Pittsburg — I cannot tell the year. At that time, I was very familiar with the river and harbor reports and records of the United States from 1868 down and I presume I found it in connection with that or possibly with Colonel ElletUs report. That report (Colonel Ellett^s) was a re- port on reservoirs at a very early day along in the ’50 ’s for the Ohio Eiver. 2690 That is my best recollection and is still as to the minimum depth on Ohio Eiver. It would take evidence to remove it. I cannot refer you to data at this minute. I don’t understand that the improvements of the Ohio Eiver up to this time have covered more than a very small fraction of it, and I only, except in the case in which I had occasion to go up the river, I only know it by the reports and by its reputation. It may be true that the official records for the Ohio Eiver for 24 years, 2691 from 1855 to 1878, showed that a 3 foot navigation was pos- sible on that river and existed for an average of 285 days in the years and they might show a six foot navigation for 155 days in the year. Speaking of the Hiawassa, Gasconade, Little Tennessee and French Broad having five or six inches over the bars and improved to 15 or 18 inches of water continuously over the ripples, I don’t know what has been done upon those par- ticular streams in the last ten or twelve years. Up to the time I was following it, they were making improvements which were a little more than clearing out the snags and boulders and cut- 2692 ting overhanging trees, and making hand-dikes and hand- placed stone upon the ripples, blasting out holes through them so push boats could pass throughout the season. The boats that were navigated were flat push boats. My statement to Mr. Starr that the canal at the Des Moines Eapids was to connect the navigation in the Des Moines above the rapids with that below 887 was an error. It was to connect the navigation of the 2693 Mississippi Eiver below the rapids with the navigation of the Mississippi above the rapids. The Des Moines Eapids are in the Mississippi Eiver, above the junction of the Des Moines Eiver. I cannot refer to any records as to the depth of the water over Des Moines Eapids. I don’t know when the first appropriation was made for the improvement of the Des Moines Eapids. It may have been an appropriation of $100,000 in 1852. I know that early appropriations were made for improving on both the Eock Island and Des Moines Eapids, and finally at the Des Moines Eapids, it was ordered to open a canal which was along in the ’70 ’s. I have designed the Cheesemond Dam in Colorado which was actually constructed. I made a design or some de- 2694 signs for the dam. I afterwards recommended Mr. Qharles Harrison as resident engineer there and he finished up the design, which, with amendments made by myself, was adopted by the company and constructed. Mr. Harrison is not considered to be the designer of that dam by myself, I don’t know how it is by others. I never had occasion to make any claims or defend my connection with it. Whether Mr. Harrison has or not, I don’t know. I don’t know that I can mention any other dam that I designed that was actually constructed other than the works of the Sanitary District with which I may have had as much to do as anybody had. 2695 Q. Did you prepare the plans on which the bear trap dam was constructed. A. I did not as a draftsman have anything to do with it. Q. Did you prepare the plans for the bear trap dam of the Sanitary District? A. I suggested the principle upon which those plans should be worked out by Mr. Johnson and my brother. Mr. Johnson was one of my assistants when I was chief engi- neer and later was principal assistant of the District. The plans for the bear trap dam were prepared while I was trustee not while I was chief engineer. I had to do with the spillway up at the head of the river diversion. I did not prepare the plans for that. Q. Aside from the Cheesemond Dam and such work as you have been connected with for the Sanitary District, is there any dam 888 Cooley, — Cross-Exam. — Continued. that you ever prepared the plans for which has been erected any- where! A. I would have to think about that. I would state in this connection that, if you will consult the article in Encyclopedia Americana upon the subject of dams, it was prepared by the wit- ness and that is considered a very good authority among techni- cal men. If I think of any more I will tell you later. I could not state the distance from Eiverside to Dam No. 1 without consulting the profile, but I would say about 25 miles, perhaps 27 miles. From Eiverside to Lockport is about 21 miles. From the end of the 12 mile level to Lake Joliet is about 17 miles. The char- acter of the stream (Desplaines) from Eiverside to Lockport other than the 12 mile level is a shallow rock bed below the 12 mile level. I have described it as a mere surface stream. That was not a continuous description of the stream. That does not apply to the stream continuously. It was a larger proportion of it where broad expanses like Goose Lake and Eound Lake 2698 and other portions of the stream connect up by currents in a shallow rock bed. Goose Lake is in the 12 mile level. I recog- nize this description as made by myself: ‘‘From the end of the 12 mile level to Lake Joliet was 17 miles, a mere surface stream with a steep declivity over the lower half of the distance discharg- ing it to a level of 76.5 feet below Lake Michigan.’’ Made as late as 1907, and further, half of the sixteen miles of the rock bed to Lake Joliet has a slope of one or two feet per mile, and the lower half eight to ten feet per mile to the pool level, 76.5 feet below Lake Michigan. I do not remember writing the following: “Des- plaines Eiver practically goes dry above Lake Joliet.” The en- tire report of the Lakes to the Gulf Waterway, a report by the Internal Improvement Commission of Illinois, was written by myself, except the letter of transmittal. If the language you have quoted is in there, I will acknowledge it. The period 2699 of navigation is spring, summer, any time that the water is there. You could not navigate when there is ice. The gauge at Eiverside is a vertical sta:ff, the foot of which is in the water, set to Chicago datum. There was a little depression in the stream bed which made a slight pool at the side of the gauge, a bar be- low. We actually measured the water at various heights of the gauge so as to know the volume of water passing. The bar would fix the level of the pool in which the gauge is situated at such time 889 when no water flowed in the stream. I think 11.4 is the zero 2701 of the discharge and represents no discharge. As a matter of fact, I have never seen a case of no discharge. I have examined the Sanitary District’s reports that have been offered in evidence here. There are several periods in that record that show no discharge, but that means a very small discharge which I have measured myself. Q. I want you to answer whether it is so or not, that there is no discharge at all at that time. A. I should say no. I should say there is a dfscharge at that time. Not so much as to amount to anything. I have never seen it so low you could put it through a six inch pipe. 2702 Q. Let me make another computation. You say there are thirteen and a half feet, — no, that at thirteen and a half feet at the gauge there was that for an average of 70.4 days in how many years! A. I think nineteen years on that record, if I re- member right, that is, 600 second feet; that amounts to 600 cubic feet per second, 36,000 feet per minute. If I remember, it is thir- teen feet on the gauge. The remaining days, after the 227 days, it was lower than 12.4. Part of that time would be in the winter time when it was frozen up, and tile late summer, before the equinoctial, not all of them between May and September, nor nearly all of them. Generally speaking, those days when there was no discharge was in the late summer; did not begin in May and run until September but begin the latter part of July. The May record would give a low May water in some years when the ground is frozen and we had a frozen ground flood and the water was not replenished, then you get a low May water which con- tinues for the year, but in other years you don’t. When there was no discharge shown there was eight inches in the mimimum on the 12 inch level. The balance of the river consisted of 2704 expanses with shallow connections in the rock, and these lakes or pools would be full just the same as the 12 mile level, but the intermediate water would be nominal, connecting them. I never have seen it completely dry. I have never 2705 known of a measurement being made to find it absolutely dry. It is a negligible quantity and it refers to a condition that has existed since man has changed the conditions there and 890 Cooley, — Cross-Exam. — Continued. they have drained all the water away that would normally flow. That report deals with the natural condition of the stream from the end of the 12 mile level down. I don’t undertake to say, Mr. Scott, that the river may not substantially run dry in some years for a season or a portion of the year. I won’t undertake to say that it might be frozen absolutely to the bottom so that no water would run at all, and that those conditions have been accentuated during the time when inhabitation has taken place or since it took place upon the water shed and by the works of man, hut that that is a condition when the stream is not navigated as on other west- ern rivers when the water is extremely low and there is no water to navigate. 2706 I personally have been over it in a boat several times. Have seen the Desplaines Eiver used above Dam No. 1. Have seen a yawl go through there with a party of twenty men in it which was propelled by oars, during the month of June or July, 1888 or 1889. The party in the boat was Mayor Eoach and some other gentlemen who went down there to look over the stream. 2707 I was with them. We went down over the twelve mile level. We covered a portion of the 12 mile level. In the summer of 1892 the Sanitary District ran a yawl. I remember there was 2708 such an occasion on which the yawl was sent out there. I don’t think I was in that party. Other than the journeys I took myself, I have seen skiffs and row boats along the stream. I went over the twelve mile level so many times that I cannot give you any year. I have been on other portions of the stream.. The longest single trip I ever took was on Adam’s Dam to the mouth, in March, 1887. Went all the way in a boat, did not get out 2709 anywhere; we got out repeatedly because our mission was to^ ascertain flood-marks and all the facts we could get from res- idents along the river. It was after high water had subsided. The stage of the river was about the same as I should judge has been produced by the flow of the Sanitary District. We went through into the Illinois Eiver, stopped at the aqueduct and went down the river. We ran the rapids and stopped at the foot of the rapids. We also stopped at the head of the rapids before run- ning them. Q. What is the longest trip you took on the river from Eiver- 891 side down! A. We ran the river from Lemont down to Lock- port in the year 1892, that was during the high water of 1892 or about the time the high water was receding. I do not recall the exact time. Went in row boat. 2710 Never went from Eiverside to Joliet in one journey. Cap- tain Ed. Napier was with me on the journey to the mouth I told you about, no one else. I don^t know what has become of him. I have not made report that the discharge in the river 2711 fell to 4.27 cubic feet per second and that the water was all going through the dam. That would mean that there was no water going down into the 12 mile level except the local drain- age. There would be some local drainage. The flood elevation in nineteen years continued at an average of about four or five days in the year. The Eiverside gauge shows an elevation of 18 feet, which would mean 4,500 second feet. The depth would he about 7 feet. Q. You spoke of the cutting out of the Illinois and Michigan Canal from Bridgeport across the arm of tKe Portage Lake, in- tercepting such part of the watershed as lay south of the Illinois and Michigan Canal and tributary to Portage Lake and also the Portage Swamp, as being one of the events which deprived the Desplaines Eiver of all its water. Did not all of that intercepted water come into the river again at Joliet! A. Prior to 2712 1866, it was drained out by the State ditch through Brighton. I spoke of the canal of 1847 in that connection; it did not eventually return the water it intercepted, but on the contrary, the State constructed a ditch to drain that way until the canal was finally deepened between 1876 and 1871. A portion of that terri- tory at some point west of California avenue, I think still drains to the canal, but I am not positive as to that; that is, it was re- turned to the canal later. There was a loss to the Desplaines by reason of the percolation into the canal. It had to go into the canal above the dam. The amount of water to the river, the canal was contributed to at times from the Calumet by way of the feeder, and also by the operation of the pumping station at Bridgeport, and to that extent was a contribution to the river above Joliet, which was probably taken out to feed the canal below Joliet. I have no means of knowing how much it did contribute above 892 Cooley, — Cross-Exam. — Continued. Joliet. Whatever was necessary to keep the canal in operation or supplied, and which the Desplaines could not furnish, was supplied from those other two sources and so much of that as was neces- sary to operate the canal below Joliet was taken out again. The Desplaines Eiver was all in the canal, that is the way I under- 2714 stand it. At times in extreme drought the Desplaines Eiver was used to the extent of its capacity for feeding the canal and this was supplemented from the Calumet, and, at times, also by the Bridgeport pumping station. I assume whatever was necessary to maintain the prism of the canal on the Summit level would he substantially necessary to continue the navigation be- low Joliet, and that all of it that came into the Summit level went down in the canal down from Joliet. The Joliet feeder was built because at times the Desplaines Eiver was not adequate to sup- ply the canal. The Bridgeport pumps were put in because both of them at times were not adequate to supply the canal. Q. Why didn’t the canal originally go down the Desplaines ' Eiver! Because there was not water enough for the pur- pose of feeding it! 2715 A. No, sir. The history of that is a matter about which eveiy engineer who has examined the river has speculated, to a greater or less extent, and asked the question why they did not take the river. I have not found the reports of the earliest engineers as to why they did not. After the deep cut, the amount of water the canal contributed to the river varied greatly according to the stage of water in Lake Michigan. I looked it up at one time and I can only state my recollection. I think at one very high stage of the lake when the canal was open, it carried close to 40,000 feet per minute, in 1871, and it got down to 12,000 per minute or less at the lower stage of the river. I have made measurements on the canal and fixed a rating scale for it, and I believe that rating scale has been used ever since. I think the rating scale showed several occasions when it was below 15,000. There has been a very ordinary range be- 2716 tween 15,000 and 35,000 feet per minute. I would not under- take to give a definite estimate as to how much water the canal has taken out per minute from the river below Joliet. I as- 893 smne, in a general way, that what was necessary to take care of the canal above Joliet would be necessary below. I have not any posi- tive information as to the actual draft of the Illinois and Michi- can Canal below the City of Joliet. I have not examined the 2717 official report to see how much of the time the pumps at Bridgeport were used further than this that a statement was made that they were operated at times at the cost and by the request of the City of Chicago to increase the sanitary condi- tion of the river, and also in the interest of the water power at Lockport. How much was necessarily occupied, I do not 2718 know. It is not true that in the state of nature Mud Lake and Portage Lake drained into the Chicago Elver. It is not true that the construction of the canal added this area to the I)es- plaines watershed. I am unable to say how much water was added to the Desplaines Eiver by the opening of the Illinois and Michigan Canal. I have never made any investigation on that subject and do not know how it could be arrived at. As much water was added when the Deep Cut was opened in 1871 as the canal drew from the Chicago Elver. The canal was to have a ca- pacity of 24,000 cubic feet of water. I do not know how the open- ing of the Deep Cut affected the level of the Illinois Eiver at La Salle. You could not add water to the river without raising 2719 it. I do not know how much it raised it, not as much as a foot at La Salle. Not having given the matter any thought, I cannot answer it off hand. From 1884 to 1887 the water was pumped in and that increased the flow from thirty to as high as sixty thousand cubic feet per minute. The canal, in all the infor- mation of the period, is supposed to have greatly shrunk in its ca- pacity, something much less than 30,000 feet. The effect of the erection of the Bridgeport pumping station under the Munn res- olution was to require that a pumping works at Bridgeport should furnish 60,000 feet, or as much thereof as the canal could be made to carry. As a matter of fact, the pumps never did furnish 60,000 feet, and the greatest record that was made by them was an average of about 52,000 feet, I believe, for something 2720 like three months in the year 1889 or 1890. I should say that after the building of the Henry Dam the addition of the waters by reason of the pumping did not have the effect of raising the natural low water at LaSalle a foot. * 894 Cooley, — Cross-Exam. — Continued. It is a long time since I constructed a navigability profile 2722 below LaSalle. I am the author of a brief entitled, ‘‘The Lakes to the Gulf Waterway,’^ published in 1888. If I stated that at that time that from 1871, when the Deep Cut was built, to 1884, the canal carried by gravity to the Illinois Kiver from 15,000 to 35,000 cubic feet per minute, sufficient to raise the low water at LaSalle from five inches to a foot and a half — as much in the lower stretches of the river, it was correct and is still correct. I presume I stated that from the spring of 1884 to the spring of 1887 the water pumped “has increased from 30,000 to 40,000 cubic feet to 60,000 cubic feet, the latter amount being sufficient to raise the natural flow at LaSalle about one and two thirds feet,” but as a matter of fact the Bridgeport pumping station never realized the efficiency which we anticipated, never realized the 60,000 cubic feet which we anticipated. I made the official test in Bridgeport in 1886 myself. 2723 Q. When in 1888 you wrote this, however, in which you stated “from the spring of 1884 to the summer of 1887 the water pumped has increased from 30,000 to 40,000 cubic feet to 60,000 cubic feet,” I ask you, did you not know, when you wrote that, what those pumps had been performing from 1884 to 1887! A. I thought I did. I am not a man likely to make a statement of that sort in a document of that nature without verifying the fact. I would like to explain in regard to that matter. At that time, in 1886, as I have stated, I made a test of the Bridgeport pumping station to ascertain what the capacity was of the pumps at that point, and made a rating scale which was used for some years afterwards for the capacity of the canal. And we did operate the pumps up to the proper head to get 60,000 feet, and attempts were made for a time to maintain that volume of water, and the limit was, as stated in the report, from 30,000 to 60,000 feet, but as a matter of fact there was great disappointment in the result, as the pumps were not able to maintain an operating capacity of 60,000 feet, and did not succeed in doing so for any length of time. 2724 I made the test in 1886. The article I think was written in 1887, possibly published in 1888. At the time I wrote it 895 I presume I had the date of operation from the spring of 1884 to the summer of 1887. I would like to ask for the privilege of correcting two or three errors of statement and improper answers which I made yester- day. The Court. Very well. 2725 I have looked up the matter in regard to the area of the Missouri river basin, and now state it at 531,000 square miles. In the record that I gave at Glascow, Missouri, which I think was 1874, I should have said 1878, during the high water of 1878, they were using the river for navigation without the 2726 aid of steam. In regard to the depth of the Missouri Eiver, I would now say that the statement quoted from Major Siiter of three feet, probably applies to the river between Kansas City and the mouth; that our last snagging boat which was es- pecially built for the Missouri River known as the Suter, was de- signed to work on a 2^ feet of water in order that she might work the Missouri River in low water. In regard to the Keokuk matter, the canal at that point is 5 feet deep. The Des Moines Rapids Canal is 5 feet and the im- provement of the upper Mississippi River has proceeded on a basis of 4| feet with an ultimate depth of 6 feet in contemplation. In regard to the question about the title to the bed of the stream, I would like to supplement that by a statement that I did not understand the question to go to the matter of the public easement in the stream, or the question of the control of the 2727 water itself. I refer to the Desplaines River. I said at that time that I did not know that the matter had been discussed in the courts of the co-temporary period. I say now that I have not examined those reports, and so do not know for that reason. In regard to the water supply to the summit level of the Illi- nois and Michigan Canal, I wish to supplement by stating the fact that between 1848 and 1871 that summit level fed both ways; it locked down from the Chicago River as well as in the direction of Lockport so that the water supply was divided, perhaps half of it for the purposes of navigation being used in opposite di- rections, each half in opposite directions. That was from 1848 89() Cooley,— Cross-Exam. — Continued. to 1871, up to the time that the deepening of the canal was made operative. The summit level supply of water fed in both direc- tions down the valley and into the Chicago River. Now, in regard to the matter that was asked me as to my con- nection with the Denver work, the construction of the Cheeseman Dam, without going into any of the details in that connec- 2728 tion, I desire to state for the purpose of the record that I was connected with the Union Water Company for five years during the incumbency of three distinct chief engineers, and had more to do with bringing to pass, and in determining the char- acter of that structure than any other man. I would make the same statement in regard to the Sanitary District and my connec- tion therewith, from 1885 to 1897. And I would add to that, perhaps all other men together, and the other — and that there may be unimportant details in which I- was not specifically the originator, but nothing was done during that period which was not subject to my approval. I will say further that on all projects which I have reported affirmatively, since 1897, they have either been carried out, or are now being carried out, or are in a fair way to be carried out. I wish to say that, in view of some of the questions being raised about my practical experience. I want to make a further statement, and then I will conclude. That almost from the inception of the Sanitary District, the pos- sibility, or even the probability that the State would be required to undertake the work as a waterway was uppermost in the minds of the promoters of that enterprise, I will modify that by saying that that possibility was always one as an alternative which we ’might have to undertake, and not only that but I will state that the project prepared under my direction in 1893 and 1894 for a de- velopment of the Desplaines River was substantially followed in a report which I drew in 1906 and 1907 for the State of Illinois, and was essentially and substantially a combination of nav- 2730 igation water power. A great number of blue prints have been prepared of my report of 1893 and 4, and it was publicly presented in the Legislative Session of 1895. The State was not specifically mentioned in that report. I caused to be prepared and introduced a bill at the last Leg- 897 islature, wliicli did not provide for a commission to assess com- pensation to the owners of water power along the river in connec- tion with the deep waterway project. I had nothing to do 2731 with the Schmidt bill. Mr. Humphrey presented the hill I prepared. I approved the plans for the project at Lowell, 2732 Michigan, in which a dam was involved and executed. I projected the water power development of the Muskegon River upon which two dams have since been constructed. I pro- jected the water power development of the Huron River which in- volves a number of dams. Q. Where was thisJast one? A. Huron River, Michigan, which is in process of development. I projected the flood treat- ment of the Grand River, Michigan, for the City of Grand Rapids, on two separate reports, 1904 and 1907, which involves walls, levees, dikes and dams, and that proposition is nearly half car- ried out and is in process of carrying out as rapidly as the City of Grand Rapids can undertake it. And I projected the treatment of the river, the harbor and the location of the barge canal for the City of Rochester, and my plans in that connection have been adopted in part, not all of them. I do not know that they treated the Muskegon River according to my plans. The draftsmen in my office prepared the plans 2735 for all of these projects. Mr. Williams, who is here in court, designed the plans subject to my approval. There was no final plan prepared at any of those places except Lowell. The Illinois River at LaSalle varies through that reach from 600 to 800 feet wide, and widening out to 1,000 feet in places. The Desplaines River, at its mouth, is about 300 feet, I think. On the site of the Economy Light & Power Company, I think I made that measurement. I do not know how much water was taken out of the river 2737 for the purpose of navigation on the canal below Joliet, from 1884 to 1887. I have only looked up the question in a gen- eral way. I know that the water has been carried down the Chan- nahan level for the purpose of feeding some of the water-power below Joliet. It was carried down to supply that level, and then the Kankakee feeder came in below that point. I never made a 898 Cooley, — C ross-Exa m . — Contin ued. measurement of it to see liow much was passed down the 2 / 38 canal below the City of J oliet. I do not remember making' any measurements of the volume flowing in the canal below the City of Joliet. I knew that there had been a contest con- nected with that' matter and some compromise by which water was taken down to feed certain wheels on the Channahon level. I do not know how much was taken. I don’t know that 5,000 cubic feet per minute was the amount. I was consulting engineer of the State Board of Health in 1888 and 1889, and also in 1891. I prepared considerable matter for them on general questions and prepared also a report, or started out to prepare one, dealing with the water supply of Illinois. I think it was published in 1899, in the publication known as 2740 ‘‘the Water Supplies of Illinois.” I would not say at the mo- ment, without refreshing my mind, whether I did or did not, subsequent to that time, publish any work for the use of the Board of Health. The drainage area of Kankakee Eiver is somewhere about 5,000 miles; a little over. The drainage area of the Hesplaines Eiver is about 1,400 miles or a little less. They together form the Illi- nois. By the term “low water volume of a river is nominal” is meant that it is too small to take any particular account of. Morris is nine miles below the mouth of Kankakee Eiver. I think there is a measurement at Morris of less than 600 feet per second. I would not consider 600 feet nominal in itself. It might be nominal in relation to the average flow of the stream. I mean to be understood that there has been one year of record in the Desplaines and Illinois Eivers when the rivers practically 2742 went dry. There was no water in them at all to speak of, and that was the extraordinary year of 1867. I do not recall now whether there was not a lower record than 600 cubic feet per second at Morris. I can recall that there was a measurement at the mouth of the Kankakee Eiver of about 550 feet; that is the lowest I know of. I would not undertake to say, without mak- ing a specific examination, how much water, what depth there would be in the Illinois Eiver at Morris, with 600 cubic feet per 899 second. My recollection is it is about 800 feet wide there. 2745 My estimate is something’over a foot. (Witness here handed book, ''Lakes to Gnlf Waterway, 1906”). Q. That is page 25, that is a very good page, 25, you ought to ]-ead it through. Natural low water volume, you refer to its con- dition when not interfered with by any extraneous influences, ex- cept those of nature, do you not ? A. That is true, and it is also true that the words "natural low water volume” does not refer, in engineering parlance, to the habitual low water, but to the known extreme. And I want to further add in that connection that these known extremes are base lines in which it is recog- nized that rivers cannot be used for navigation at all, and that the actual stages that are useful lie about it. They are 2746 limits. For authority, I could only refer you to the fact that in the early surveys of the Illinois Kiver, and in all of the discussions for portions of it up to the survey of the Ernst Board reported in 1905, and also on the upper Mississippi, the low water of 1867 is used as a datum plan of reference. Q. But it is not used as defining the natural low water volume, is it? A. The two are synonymous. The natural low water vol- ume and the lowest record are synonymous in engineering 2747 parlance.’ I don’t know that you can find the definition, ex- cept as you take the individual words and go through a dic- tionary. I know from some thirty years in contact with the river that that is the way in which it is habitually used. I do not say that it is true that other engineers besides me use the term in that way. We speak ordinarily of the normal low water and the extreme low water. In that case it refers to the ex- treme low water. What I mean in that report is the natural low water volume. Q. In the next paragraph, we find that you used the term again "extreme floods, may be assigned to two causes: — Heavy winter snow on a frozen ground surface produces a great break-up rise, followed by extreme low water, as in 1867 and 1887. Again, long continued rains fill the ground and marshes 2748 to overflowing, and the excess runs away in a great flood, as 900 Cooley, — Cross-Exam. — Continued. in the several great floods of May and June. In long continued dry periods the storage of marshes and ponds is exhausted, and, as the subsoil is generally impermeable, extreme low water follows. In ordinary years, the floods are moderate and the low water volume well sustained. ’ ^ did you mean when you used the term ‘‘and the low water vol- ume well sustained,^’ the lowest recorded water? A. No, sir. Q. You have used the words “low water volume.” That is what I had in mind. In these two paragraphs what different 2749 meanings have you? A. I have used it generically and speci- fically, I think. The low water volume, generically, refers to the low stage of the season, and in some seasons, this low water volume is well sustained, or much higher than in other seasons, and in that connection I was discussing the subject of marsh ef- fect, which, in ordinary seasons maintained a good water volume. I don’t think I have used the words in different senses in the two paragraphs. Their meaning is perfectly plain in the context. The addition, or prefixing of the word “ ‘natural’ low water volume” gives a different sense when you use the word nominal in con- 2751 nection with it. That is the best answer I can make in view of what has been read to me. 2752 CouxsEL FOR Defendant. Professor Cooley you have said that there is a record of 600 cubic feet per second at Morris. As a matter of fact, is it not true that there is a record of 250 to 350 second feet in 1887 at that point? A. I do not recall it. I made the measurement at Morris in 1887 and set the gauge to whatever I said in regard to that, having the facts before me, it would be correct. Counsel for Defendant (reading from book) : “The natural low water volume of the Illinois at Morris in nominal, not exceed- ing 250 to 350 second feet in 1887, practically at extreme low water, after allowing for canal water from Lake Michigan.” Was that a correct statement at that time? A. I think I had the facts before me at that time. I think the statement is true. That is the only year in which I made the observations personally. 2753 I think also the low water at 1887 was lower than it has been since the bridge was built at Morris in 1876. I know the condition of the bed at Morris in a general way. I did know 901 it at the time I was examining the stream. I think it was actually navigable at that time. At that time I would say it was three or four feet deep. It was in a pool that extended clear to the Marseilles Dam, something like fifteen miles or more, and extended up stream pretty nearly to Kankakee, so a boat could run as long as there was water enough to supply it for that. The water 2754 was 250 to 350 second feet. I think the depth was from three to four feet. The depth varied from twelve to fifteen feet deep up, to limits of less than three or four feet over that entire reach of 16 or 17 miles to Marseilles and it extended up practically to the foot of the rapids, about 7 or 8 miles. I did not see any steamboats on the river. I saw a large number of skiffs. When I saw it the water from the Illinois and Michi- 2755 gan Canal was mingled with the water of the Desplaines and the Kankakee. I think the average contribution throughout the year was pretty nearly in proportion to the relative drainage area, about as 5,000 is to 1,379. I would say, as I have said in re- ports, that, owing to the very large marsh area from the watershed to the Kankakee, the low water flow is well sustained except in some extreme years of drought when it suddenly drops to a very small limit. The Desplaines Diver has not the same propor- 2756 tion or character of gathering ground, at least, to the same extent. It runs out somewhat quicker. The general descrip- tion of the Desplaines valley that it is an impermeable soil is cor- rect. The Kankakee is morasses and marshes, and maintains its water and yields it gradually. I think that 550 second feet was the low water on the Kankakee near its mouth, in 1867, that is vol- ume reported by General Wilson as reported by Worral. I have in my mind a figure like 27,000 feet per minute. There has 2757 been some other figures. I have stated sometime since, I think, that it was 550 feet when I should have stated it wms 450 feet, because what I had in mind at that time was something like 27,000 feet per minute. I made the mental deduction wrong. I have no recollection of a measurement respecting the low water of 1867 in the Illinois Diver, except at LaSalle where the volume is reported at 633 feet per second, I believe. Claypool had a mark of reference to which he referred the stage of water 902 C ooley, — C ross-Exam. — Continued. , at Morris, which I took into my levels in 1887 with a view 2758 to interpreting the records kept by Mr. Claypool in his diary from 1834 down. My remembrance is that the Claypool plans were about three inches above the low water of 1887. The amount of water being contributed by the drainage district to Desplaines River has varied from about 4,200 feet per second up to 6,000 feet per second. It is normally running 6,000 and down as low as 4,200. I could only guess how much that water would raise 2759 the level of the Illinois River at Morris in the absence of the rating curve but would guess it at about three feet. I don’t think that the Kankakee River is three times as wide as Desplaines River at the mouth. Then the Desplaines River as a whole has a very variable width. My best recollection is it was about 300 feet wide at the mouth and the Illinois River at 2761 Morris 600 to 800 feet. I don’t think it averages as wide as 2762 800 feet, probably nearer 600 feet. I think I have said that it (Desplaines River), goes sub- stantially dry, not absolutely, at times. The river below Joliet is characteristically different from the stream above Joliet. It is a succession of navigable pools, with very small intermediate in- terruptions so that a boat could pass through it, whether there was any water in the river or not. The river differs very radi- cally above. It had a very large swamp control on the Chicago summit, which the upper part of the river did not have to 2763 the same extent. The swamp control reaches the Desplaines River at Summit and in the Portage swamps and lakes, and in the 12-mile level. It maintains a surface stream in such con- dition that the original explorers gave to it the name of Plein, which was a full river. The swamp control is below Riverside. There is marginal land that overflows there from Joliet to the mouth of the river. Some of the marginal lands might be 2765 classed as swamp lands. I don’t know the area in acres. I went over that acreage once for the purpose of putting a value on it. They are called marginal marshes along the shores of Lake Joliet and some down below the mouth of the DuPage which I would call swamps. They are not swamps in the sense of the Kankakee swamps. They are feeding sources only in the sense that every swamp and every bottom land from which flood, over 90:] which floods gather, will later run out, prolong a flood. They are not feeding sources in the sense that the swamp in the neighbor- hood of Summit is. The supply for the lower river below 2766 Joliet, aside from above Lockport, is Hickory Creek and the DuPage Kiver, Jackson Creek and Kock Kun. I don’t think the DuPage Piver ever dries up. I would not say that any of them absolutely dry up because I never saw them dry. I won’t under- take to say where I got the information to put into the re- 2767 port, I probably got it from some citizens along the stream. There are streams with impermeable sub-soils, which you might call surface streams with the exception of the Desplaines, with the exception of the DuPage Eiver, which has a considerable control through a large area of permeable ground in the vicinity of Plainfield. The other three streams all come in above DuPage Kiver. I don’t know of any considerable body of swamp land on any of. them. I would answer in regard to Hickory Creek that there has been sufficient water in Hickory Creek to operate a mile. Riley’s Creek comes in through what is known as the Kanka- 2768 kee Cut-off, it is very near the mouth of the river. The mill at Hickory Creek was up above the city limits of Joliet some- where. I don’t know that there was enough to warrant the plac- ing of a mill there. I think I have seen some gasoline launches or steam launches or something like that, down on Illinios River, be- tween the mouth of Desplaines and LaSalle. I think I have but my recollection is not sure on that. They were pleasure boats and I think they were owned along the pool, and I have seen them on the river, but I would not be positive about that. 2769 Q. What value did you attach to the upper Desplaines as a feeder for your deep waterway? A. We have treated the proposition as a supply of water from Lake Michigan. That is the 24-foot waterway. I don’t think we used the upper 2770 Desplaines in that connection; in fact, I think that our early project contemplated removing it entirely except to maintain the low water volume. The early recommendation of 1885 was that the flood volume be diverted into Lake Michigan north of Chicago. The ordinary volume was to be retained in the stream, as I recall it. Q. Wasn’t your project that the river itself, the upper river 904 Cooley y — Cross-Exam. — Continued. should be diverted so as to enter Lake Michigan north of the City of Chicago. A. That is true, as I have stated, in respct to the flood 2771 volume. The river comes down the upper Despl nines. Whatever volume comes down the upper Desplaines plus contribution along the course of the stream below Riverside goes into what we call the river diversion channel, which is a new channel in part and mi old channel in part below the Santa Fe Railroad. I think out of the total correction of the river extending over twenty miles a little more than half of it was new channel. The old channel has been in part filled up and part used as a site for the main drain- age channel. The old channel where this drainage canal does not follow is substantially filled up with the spoil banks from the drainage channel. I think there is no water in it. Q. And when you get down to Joliet the river has been di- verted from its old channel here in the lower right hand corner, has it not! (Indicating on map.) A. I believe it has. I think there is no water in that old channel now. 2772 The penitentiary and steel works are now on that old channel. The river swung out in the vicinity of the E. J. & E. Railroad, came in below Dam No. 1, and in the con- 2773 struction of the I. & M. Canal that bend v;as cut out in the development of that waterway. I don’t show the low water line of profile of 1867 simply for the reason that ever since the standard low water line of 1883 has been established, it has been habitually used in all surveys as standard reference. I will say, however, that 1 did examine the low water line of 1867 and also of 1874, the profiles of General Wilson and Colonel Macomb in that connection. "We have attempted to reduce these profiles to the same scale, and to make a supplemental diagram, but lound that we could not adjust the datums, that was the reason — and we found further that the profiles were very fragmentary, and the data very incomplete, as compared to the 1883 profile. The 1883 ])i‘ofile was made after the addition to the volume of the water in 1871. 1 did not use the profile prior to that time. I think 2774 that possibly the party that I sent through the valley in 1890 and 1891, picked up a lot of bench marks of the Wilson 905 survey, but in the time at my disposal I was unable to check that matter up, and the general data upon the profile of 1867 did not seem to be competent for comparison with that of 1883. I was thoroughly persuaded that it was not competent as a comparison. I would have given it more time and attempted to look up these bench marks if I had it at my disposal. It is given on the face of the original profile as so many feet below the lower water of Lake Michigan, given in reference to the canal bottom, I 2775 think. The low water of Lake Michigan is a well known elevation. The low water of 1847 is the standard and has been used ever since so far as I know. There is difficulty in com- paring that data with later surveys. Different lines of levels differ by one to three feet from here to the moutli of the Des- plaines. You can adjust and take into account those differences if you have got the bench marks by which you can put the last set of levels upon the bench marks of 1867. You can make the ad- justment perfectly. I know that there was a long standing dis- crepancy in the level from here to Joliet of about a foot. I ran or had run the precise level to the mouth of the Kankakee River. I don’t know whether they w^ere used in the last survey or 2276 not. I believe they were. I endeavored to pick up in those different investigations all the bench marks that could be found. I do not know that we succeeded in picking up any in that vicinity by which we could make a definite comparison. What I wish to say is that our examination of the profile did not show that it was comparable or that the data was exact, or the sound- ings frequent, or a proper profile to compare as to accuracy 2777 with the profile of 1883 and later dates. The line I was seek- ing was a reliable, certain and definite base line such as could be assigned and had no reference to whether the 1867 was higher or lower, or anything else. If the 1867 base line had been a base line that could have been determined as certain and about which we had as much data as 1883, it would have been adopted without any reference to date or time. Q. Then let me put it in another way. Professor Cooley. As a matter of fact, the base line you did ascertain was one without reference to the condition of the river prior to the adding of the water by reason of the deep cut and the pumps I I would 906 Cooley, — Cross-Exam. — Continued. prefer to state what I actually did, and the reason why I did it. 2780 Q. The low water line shown upon the profile that you have made, does not show the low water line as it was before the introduction of the water in 1871, by the deep cut and by the pumping works, is that correct! A. That is correct. The profile was made between December and February, 1907 and 1908. It was made after the navigability bill was passed, and part of the motive was to exhibit the conditions in issue in this case, not to satisfy myself upon that question but to exhibit the relation of the different parts of the stream graphically. I do not know of any other way to do it except by constructing such a profile show- ing the stages of water and their relation to the bed of the stream. 2781 The profile of 1867 of which I have a copy on a very con- densed horizontal scale has not the certainty of the profile of 1883. I simply adopted the 1883 profile because it has been used by everybody since then in all official reports and to save confusion in interpreting recent data. It shows the bed of the stream and the low water line of 1867. 2782 A navigable stream is a stream that has a bed of sufficient capacity and enough water therein to be used for a suffi- cient part of the year to be useful for the purposes of navigation. In some sections of the country row boats would be used. I do not undertake to sa}" in the State of Illinois. I doiiT know that it has been settled finally in this State as to what does constitute a navigable stream. When I say the Desplaines Diver is a navigable stream, I mean that it was used as such navigable stream from the beginning, or the discovery by such conveyances as were 2783' in use in that period, and has never been divested of that character. I mean further that the condition of water there- in and the condition of the bed are such that it is capable to use it. I do not know that I have seen flat boats there, but other than that I VvX)uld not say that I have actually seen anything like a steaml)oat, i)ossibly a steam launch. My idea of a navigable stream is a stream that is capable of use. The fact that it had boulders in it or snags in it or that it needs some improvement in- cidentally does not go to the question at all as I understand it. 1)07 2784 Q. Is it your idea of a navigable stream that it is one which can he made navigable? A. It is already navigable, as I understand a stream, if it has a proper bed and sufficient water therein to be capable of use. If you ask me the question in view of the court decisions in Illinois, I would not know how to answer the question. If you are asking the question as to the practice of the United States and the practice of the profession, I say yes, that all streams that are capable of use are public waters in a broad expression, and various states have taken various views of it. 2785 I think the Desplaines Eiver is navigable in fact and never has been divested of that character. Q. You w^ere asked whether the building of this dam at this point would obstruct navigation and your answer was that it would. As a matter of fact, there is no navigation on the 2786 Desplaines Eiver to be obstructed, is there? I would say no. I use the word navigation as referring to the condi- tion of a stream. Boats pl^dng up and down a river is commerce. I don’t think there is any commerce to obstruct at present. Q. If a dam were built at that point where you understand this dam is to be, the stream would be usable, would it not, for 2787 boats from the head of Lake Joliet to that dam? A. It is usable without and won’t be more usable with it. The depth for that river and its navigability is limited by con- dition at Treat’s Island and at the head of it. The build- 2788 ing of the dam at that point does not change those condi- tions. The further effect of the dam is to prevent any boat from going down stream. I did not understand that it was in the proposition to deepen the river at Treat’s Island, unless you have a back water effect which raises the level of Lake Joliet very ma- terially and extends your flood line clear up to Brandon’s Bridge and above it. There is no elevation seventeen feet deep except at one point for a limited distance. 2793 Q. There was a matter I was mistaken about yesterday when I asked you the average number of days, or the num- ber of days for which you gave no averages in the Desplaines 908 Cooley, — Cross-Exam. — Continued. Kiver at and below Eiverside, the actual number for which you gave no data for each year, wag 258.3 days, wasn’t it? A. The difference between the lowest figure which I gave, 107 days, I think was in that period of nineteen years the dischztrge was less than 305 second feet for the period given. 2794 Q. Mr. Cooley, can you cite any report, document or communication prior to 1906 in which the Desplaines Eiver was referred to as a navigable stream! A. From my interpreta- tion of those reports they all refer to it in that way. I think that some of them do mention it as a navigable stream. I would have to refresh my memory b}^ looking them over to ascertain that. Q. You gave some testimony yesterday that the things re- quired to be done by Griswold in the contract of September 2, 1904, could not be performed for less than the sum of $100,000. What are the things required by Griswold to be done under that contract, which could not be performed for less than the 2795 sum of $100,000! A. As I recall the language that was read to me from the contract it referred to changes in the towpath bank for some miles between the site of the power dam and 2796 the Channahon crossing of the DuPage Eiver. That is what I testified to as the thing which would cost more than $100,000. It referred to all the matters mentioned in the agreement or con- tract that was read to me, which I don’t recall, the qualifica- 2797 tions that were in it yesterday. As I understood the contract it was required to put the matter in substantial condition and forever maintain it so that it would maintain itself automatically. That is the construction I put upon it. It is some time since I read the contract through in full and I would not undertake 2798 to say what was or what was not in it. I had in mind that he was required to put that towpath bank of the Illinois and Michigan Canal in condition so that it would practically maintain itself automatically for an indefinite time in the future. That is what I had in mind in making the statement respecting the $100,- 000. I could not state how much of the $100,000 applies to rais- ing the towpath bank two feet. I could make no- estimate at all. That was a judgment of delivery. I have not examined the ground in detail. I have never seen a plan for it. The plans submitted by the company did not contain that feature of tlie work so I have 909 no details by which I could make a detailed estimate on that sub- ject. It is* not practicable to do the things provided by clause six or clause nine of that contract without interfering with the navi- gability of the canal, because the works provided thereby en- croach upon the prism of the canal. By the prism of the canal I mean the parallel sides of the canal which contain the water, the parallel sides and bottom. The official width is 60 feet at the water line, I believe. 2799 Q. Do you mean that if it encroached upon the canal five feet you could not navigate the canal? A. I mean precisely what I answered, that it would interfere with navigation. It 2800 would not prevent navigation of the canal. I do not know whether the cross-sections of the drainage canal are shown there or not. The term prism is that part below the top of the water line, that is the water prism. The canal prism would extend to the top of the slope as far as the banks are formed. I could not describe that further than that I noted there was a slope from the top of the towpath down to the water line which I took showing the water line. 2802 The Coukt. Let me understand. Do you mean that you assumed that there was a five-foot reduction of the water prism? A. Yes, sir. I assume that the angle of the slope would be the same. I did not assume that they would be permitted to make a steeper slope there than originally existed. Q. Now, Professor Cooley, if it should prove that that slope is not a continuous slope from the top of the towpath but that down to the water level it is a very much sharper slope and that then there is a bench, and that then the slope proceeds to the bot- tom and that this filling in makes the whole slope continuous from the top of the towpath down to the bottom of the canal and continues in the line of the present slope below the water line, your conclusion that they had filled in five feet of the navigable water of the canal would not be correct, would it? A. No, 2803 on the statement of that hypothetical question it would not. I looked along there to see whether a wave berm had formed. There is in localities such an exhibition which produces this bench 910 Cooley,— Cross-Exam. — Continued. that you speak of. I did not notice in the mile of the bank that I looked at with more or less care that that would affect the mat- ter so as to require a different statement from what I have men- tioned. I don’t know that a berm was ever designed or left at or near the water line in the original construction of the canal. Q. Did you make any examination to see whether my hypothe- sis was correct? A. I don’t think it was from my examination. I did not make any examination for the specific purpose of such a hypothesis. 2805 I made an examinnation of that bank for a mile, but I did not see such conditions as described by counsel except as I have already explained. I made it for the purpose of 2806 photographing in my mind. I will say that I saw nothing in connection with the towpath and banks which I did not assume had come about through natural causes since the canal was constructed. I did not make the examination with respect to any explanation of it. I made the examination for the purpose of ascertaining the facts. I said that I had discovered such a bench in one of my answers extending along the canal in the part which I described as a wave term. I did not notice any such bench con- tinuously. 2807 Q. For how long a portion did you discover inroads into the bank? A. For a portion of the bank. I could not give the percentage of friction, such degradation as occurred from the action of the water and the elements and the excavation of the wave berm, where the bank is not properly protected. I did not notice as a matter of fact, any bench where filling occurred. I did not find any bench outside the line. The canal was below what I considered normal and I don’t believe there was any. 2812 Q. In addition to the filling in of the prism of the canal to which you have testified, what other reason have you to give why the contract between Mr. Griswold and the Canal Com- missioners cannot be carried out without injuring the canal? A. The raising the towpath would be an interruption of the use of the towpath. In the absence of the specific plans of the company, I do not think that I can properly cover that question. I would have to assume a treatment of my own which would not necessarily be 911 the treatment proposed by tlie company. If I should put my own interpretation upon what would he recpiired there, then, I should say that in order that the canal should not be damaged, the banks would have to be greatly reinforced. It is possible 2813 to reinforce them. It is possible to do anything in engi- neering, at a large cost, not less than I have stated, $100,000. I would not undertake to say that it could be done for that sum. I have already stated that it could not. The effect of waves and degrading the banks, and the elements. The difficulty of making a proper bond between an old and a new bank, the amount of material required to build a bank of sufficient width and suitable grades. 2814 Q. Have you ever known of a dam to be attached to a towpath bank? A. Yes, at Dresden Heights. I do not for the moment think of such a dam elsewhere. I do not recall any at the moment which has existed on the Desplaines Elver. I did know^ the Adam Dam when it was in existence. I donT know how long it was in existence. It was condemned about 1898 or 1899 by the Sanitary District. It was in existence when 2815 I first became familiar with the river, somewhere between 1885 and 1887. I would not say that in examining the his- tory of the river I found it was placed there about 1840. It had been there for a long time. I do not think that the made bank came down to that point, as a matter of fact. I think it was attached to the proper bank of the river. I would say it was attached to the river bank on the towpath side of the canal. At Dresden Heights it is a made bank clear down to the water level of the river. I would not undertake to say exactly how far 2817 that condition exists. It may be half a mile or more. On this 16-acre tract it is not a made bank. I might say I had in mind the general question, along the Desplaines River, and not the amount involved in this issue. Q. You sa}^ now it was more than a half mile, I want to know how much above the dam which this pool would rest against is made bank? A. Oh, I think it is 1,000 feet or more; quarter of a mile — something like that. I would not be able to tell without scaling it, how far it is up to the 16 acres from the dam. About 1,000 or 1,100 feet from the point of land where the towpath starts Cooley—Cross-Exum.— ■Continued. to the begiiming of the land that runs out into the river from the towpath. 2820 Q. If it were a side hill construction, what would be good practice, would it be good practice to dig out all the lower side of the hill and then fill it up again to make a bank? A. It would be very effective. I don’t think it is done in that way as a matter of fact. I did not dig into this towpath bank to see what material it is constructed of. I could only judge by the surface appearance. I assume that it was material taken off of the bluff, which is clay, in large part; it would be impermeable clay. As far as I could judge that same general character prevails all the way up the canal and towpath bank. I don’t know of any means by which you could avoid saturation if the bank is in position to be satu- rated. 2822 My professional judgment is that under the conditions which are to exist here, the bank should be greatly widened and the prism of it greatly increased, and the slopes greatly flattened and the top of it increased in width and suitably pro- tected by rip-rap on the outside. I gave that opinion on the di- rect examination, and I gave it with some hesitation because I had not critically examined the entire locality near, nor had I seen the plans. Saturation demands very flat slopes. The widening, making a wide top to a bank is simply an insurance against the effects of slips due to saturation. My judgment is that if the slope of this bank were protected with ruble stone 2823 that the saturation would result in the destruction of the bank, in combination with the other forces, the effect of the waves and of the ice, the general degrading influences of the atmosphere; muskrats and crawfish, and all other vermin attack banks. That pool would be a reservation for muskrats, and that bank will be a suburb all the way up to Channahon. The 2825 danger from vermin is both above and below the water. I think with the pool of water there would be greater danger from muskrats than now. I have seen them work under a great many circumstances; used to trap them; know somewhat of their habits of getting into a bank beneath the water and climbing up into the bank to build their houses in the heart of the bank. I 913 have fallen into such houses where they have made an excavation big enough for a bullock, and I saw a muskrat the other day down inspecting the premises when I was down there. I understood that they were nearby, ready to emigrate. I have never known them to build in deep water, they build their houses in shallow water. I have known them to build in banks. They build homes in rushes and marshes; in shallow water and in lily pads; the roots of a lily are the choice food of muskrats, and they much inhabit such places. I believe it is a part of the official records that th^ 2826 dams for reservoirs at the headquarters of the Mississippi Elver and embankments were greatly injured, or destroyed from muskrat depredations. I have been along that bank a great many times, and, as I have already stated, I don’t know that the lower part of the bank is a made bank. I never noticed any particular amount of seep- age; it seemed to be a tight bank. Q. That bank, let me see if I describe it correctly. The canal leaves the Desplaines Elver below Dam No. 1 at Jackson street. Adams street dam was 2,600 feet below at Waller street. Where the canal leaves the river, it is separate from the river by a bank 12 feet wide, at the top, extending 2,600 feet down to the dam, an artificial bank, with the canal on one side and that river on the other, isn’t that true? A. It is true in part. I think 2827 all the way down to the Eock Island Eoad, it is behind an island, or is excavated inland in solid ground. I don’t think 2,600 feet of it is an artificial bank. I do not think so much of that is of an artificial character and I would not say at this time ^ that it was not excavated in the rock along that portion. Q. Is it not true that it is an earthen bank for the portion that I speak of, and that it is vertical on the canal side, and is the same slope as. the slope at Dresden Heights on the river side? A. It could not be vertical on the canal side, unless there is a wall there. There may be a wall there. I don’t know. 2828 Q. As a matter of fact, is there any danger whatever of destruction from saturation of the bank at Dresden Heights, built of impermeable clay, standing since 1848? A. I don’t think there is any danger from the canal side. I think there is actual danger from the opposite side. 914 Cooley y — Cross-Exam. — Continued. 2830 In regard to the pool created by the Adams’ Dam, I should say that I am not sure. I think I did say as to whether that made bank extended down to the water level or not. My im- pression is that the river and the pool there was always in the natural formed bed of the stream. If that was an artificial bank, the toe of which was subject to saturation by a continued pool of water, good practice would require that a very considerable berm be made out at the foot of that bank in order to insure its staying there. 2831 Q. I did not ask you about good practice. I want you to • answer that question and assume, in addition, that the pool level bore the same relation substantially to the water in the canal as that proposed at Dresden Heights. A. I think that would be a case of ‘Hrust in God.” I don’t think an engineer would urge the proposition on that basis. I wish to explain that a canal bank, built as canals were originally built in this coun- try, was a matter of trial and error to a certain extent. I simply want to state the bank stood there for sixty years, that is all there was in explanation of that. 2832 Experience has changed practice somewhat in that regard. That an existing canal bank is in the nature of a survival from perhaps many breaks and destruction and refills. In the early history of the canals the breaking of banks is a very common phe- nomena and in the course of sixty years they all become stable. The lines of drainage, of the embankment are formed, and the front of them are puddled naturally by the silts from the canal, where the similar practice on a new canal would be intolerable. The bank to which it is proposed to attach is of the same general formation of the clay strata, I believe. The same drift. 2833 A larger proportion of the bank is beneath the proposed flow line of the river. A larger proportion would be covered by the pool. It is a much higher bank also. The one at the north of Desplaines Eiver is the higher bank, perhaps ten feet higher. By the heights of the bank I mean to the foundation of the em- bankment. To the bed of the river. Q. You have stated a formula for determining the velocity. Is that given in any works on hydraulics, your formula! A. The princi])les upon which it is based are given in all works on by- 915 draulics. The standard formula as given in works on hydraulics is Kutter and Chezy. 2835 Q. Do you know where the high water line down at this point and on the side of the river where the canal is, is lo- cated? A. I do not. Q. If it be true that it is located upon the bluffs, and that the meander line is down near the margin of the stream, your statement would not apply to that place, would it? A. I would have to distinguish in that matter what the theory meander line as to the practice of individual surveyors in locating them. I cannot say that it was or was not. I was not thinking of that particular location when I gave the definition. I do not mean to say that the meander line down here conforms to the high water mark. The only point I was trying to bring out in that connection, if I might explain, was that the meander theoretic- ally corresponds to high water on the shore of the sea and that in practice, surveyors run out to the top of the bank, which is at or near mesne high water upon those streams. The head of 2836 navigation on Illinois Eiver is at Eiverside. Eeferring to the Illinois, as geographically known it is at the forks of the Kankakee and Desplaines. In January, 1888, it was geo- graphically known as the head of the Illinois Eiver. Q. I read from the pamphlet, the Lakes to the Gulf Water- way, a brief with illustrations and notes by Lyman E. Cooley: ‘^Two channels have been supposed, viz.: One from Lake Michigan, by way of the Chicago Eiver, with a branch unit- ing at the west fork of the South Branch, near the city limits; thence by artificial channel southwesterly in the bed of Mud Lake to the Desplaines Eiver at Summit, eight miles; thence southerly by a channel in the rock bed of the Desplaines to .Joliet Lake, 28 miles; thence by a slack water — locks and dams and channel improvement in the bed of the Illinois and Desplaines (64 miles) to LaSalle, the present head of navi- gation on the Illinois.” Was there any difference between the head of navigation 2837 on the Illinois then and now? A. As used in that book, there is not. The steamboats have not been in the habit of coming above La Salle since the opening of the canal. Ottawa was at one time 916 Cooley, — Cross-Exam. — Continued. the point of departure for steamboats, and the Illinois and Micln igan Canal was contemplated originally with a terminus at Ot- tawa. The low water period is stated usually at sixty to ninety days, and the locks and darns, however, I corrected that so the navigation is continuous throughout the year. 2838 Q. When were those locks and dams erected? A. The one at Henry was put in about 1872 by the State of Illinois. 2839 The one at Copperas Creek I think in 1878. They were both in when I wrote my brief on the Lakes to the Gulf Waterway in 1888. Q. In that you said, did you not: ‘‘From LaSalle to the Mississippi, ten feet deep on bars at low water, immediately, and ultimately fourteen feet. Dur- ing a large part of the year the Illinois Elver is shallow, slug- gish, and at times stagnant and unhealthy and unfit for profit- able navigation.’^ A. In its natural condition, I think was the condition which I was referring to there. Re-direct Examination. 2840 Q. Mr. Cooley, I think on your direct examination you indicated drainage lock between Lockport and Joliet, not on Hillebrand Exhibit 1, but on the unmarked facsimile. I wish you would indicate it on Hillebrand ’s Exhibit 1. Where the red lines make a triangle around the white spot, on the line between Sections 27 and 34. There is a dam across the Illinois Eiver at Marseilles. That is up the river from Ot- tawa and between Ottawa and the confluence of the Kankakee and the Desplaines, the dam that was provided with no lock or other means for the passage of boats. Adams’ Dam never had the flood of the Sanitary District coming continuously against 2841 it or over it, nor the bank which was built up above the Adams’ Dam. When they destroyed the Adams’ Dam they took out and to a large extent destroyed and removed traces of the whole bank that stood there in connection with and as a part of the bank. The river bed has been cleared out. It has been cleared out now for some nine years or more, so that the cus- tomary land marks have been entirely altered for that length of 917 time. I have not made any specific measurements of the hanks at that spot. In using the term ‘Miigher” with reference to an elevation, like Hennepin datum or Chicago datum, I suppose the Adams’ Dam would be higher. The bed of the river at that point is rock. The toe of the bank would come down to rock. 2844 Q. Now, I will ask you with reference to the depredations of vermin, whether the greatest depredations have been above or below the water line? A. At and above the water line, that is, the ordinary water line. 2845 The crest of the pool on the river side is on the level with the bottom of the canal on the other side. It is twenty- four feet from the top of the towpath down to the river and it will be seven feet afterwards. 2846 The Court. Why haven’t those vermin been getting in all the way up the towpath from the river? A. No food supply in the canal, on the riverside. Muskrats will start in beneath the water line and then work up into the bank, and they make an excavation up above the ordinary water level. They would not work 24 feet above the level, nor 15 feet above the level, but from a foot to a yard 8247 above the water level. With the water 24 feet down they never would get up to the point where the canal is. The water on a level with the water of the canal, you would raise the danger point of attack; and furthermore, such a point would be productive of food supply for such vermin and they are like mi- crobes, they get against the food supply, wherever it is. Q. To what area would the occupation by those vermin be limited by means of the erection of this dam and the putting in of this pool? A. The towpath bank and some areas of ground that are out of water in that vicinity, and some shallows upon that shore. 2848 A bench, or a shelf, or a wave berm in the slope of the towpath is described by the forces that make it, as a wave berm usually. It is caused by the action of the waves in the canal, produced naturally by the wind or by the passage of boats, it ex- cavates a shelf at the water line or bench or berm, as it is called 918 Cooley, — Re-direct Exam. — Continued. sometimes six or eight feet wide, in a canal of the magnitude of the Illinois and Michigan Canal. I did not see such a berm where the towpath had been raised, but in the portions of the tow-path that were undisturbed there was a wave berm excavated for a part of the distance, not continuously. If in the filled por- tion of that bank there had a wave berm which was covered up and obliterated by the filling, the action of the water in the canal upon the new slope and bank formed by the filling would bd 2849 to degrade it to the natural slope, the natural condition. It would go down into the canal. Where I saw filling put in upon the towpath bank, and upon the canal side of the tow- path, it was much steeper than where I saw it unfilled. In fact, I judge it to be as steep as the material would stand. The new filling encroached upon the actual water occupation of the canal, a foot or more in places. It encroached upon the prism of the canal at the new level of the towpath bank about five feet. The new filling at this steeper angle of inclination will not 2850 maintain itself. In my cross-examination, I assumed that the ultimate formation of the bank would correspond or be parallel to the present or the sloping of the canal as it formerly existed, and that the widening in at the bottom of the canal would correspond to the widening at the top of the towpath. The plans submitted by witness Heyworth do not show any provision for that part of the work. Jackson Creek and Eiley Creek are on the left bank of the Desplaines Eiver, or south side. They are rather parallel 2851 in their general courses with the Kankakee. The land over there is the upland, hilly and passes through, both creeks pass through a subordinate plain in their course to the river lying between the Desplaines and the Kankakee Eivers. Their general watersheds are -hilly and broken. That along Eiley Creek is marshy to a limited extent upon this plain. I refer to a triangu- lar area across which the Chicago & Alton road is located, be- tween the two rivers. I said my idea of a navigable stream was a stream having a bed of sufficient capacity and with sufficient water therein to be capable of use, for a sufficient portion of the year, to make it 919 available for use. The word ‘^use’^ means use in navigation, in commerce, for conducting commerce. Q. You spoke of the profile of 1867 as having certain dis- crepancies of data. Are there several different data or datum lines which at different periods have been in use in the Mississippi Valley in surveys of this character? A. Yes, sir. The 2852 datum referred to in 1867 is the low water of 1847 in Lake Michigan. I think the datum used in 1874 is identical, but I will not be sure about that without reference. In the 1883 sur- veys, under Major Benyuard, Hennepin datum was established and there are three or four variations of that wliich have been used in later surveys which make the profile of different periods somewhat difficult to adjust. These several datums are taken up in the precise level line as finally run in the survey of 1903 and 1904, but there is a very considerable discrepancy which makes it difficult to adjust different profiles with exactness. Q. That dam at Marseilles, with the raising of the water at La Salle below this dam at Marseilles by means of the discharge of the I. & M. canal water into it, would it have any effect upon the water in the Desplaines Eiver at its mouth? A. None what- ever. The condition of the bed of the Illinois Eiver at Mar- 2853 seilles does not correspond to a true prism with a plane bot- tom. There is a natural pool 10 to 12 feet deep, extending up stream, 12 miles or more from Marseilles, within about 3 miles of Morris. Above that the depths are less, 3 feet or more, as I remember, up to the vicinity of the mouth of the Kankakee. These pools have banks sloping to the center where the depth is greater. The contribution of the Kankakee and Desplaines Eivers in a state of nature, compares substantially as their 2854 basin areas figured, about as 1,400 and as 5,000. The rela- tive quantity of water from the Kankakee and by way of the Desplaines Eiver to the Illinois Eiver below their confluences would be in the proportion of about 40 to 60, 40 for the Kankakee and 60 for the Desplaines. In other words, the average contribution throughout . the year by the Kankakee ought to be in a normal year, about 4,000 second feet. The average flow from the Des- plaines Eiver, plus the average flow through the Sanitary Canal, would be in the vicinity of 6,000 feet per second. I made a map of 920 Cooley, — Re-direct Exam. — Continued. the watershed of Desplaines Eiver in 1888. (Witness iden- 2855 tides map.) The dotted line referred to as entering the lake in the vicinity of Kenilworth on the north shore and extending to 87th street on the south, and west along the boundary of Cicero, and including a part of Lyons in the Sanitary District as outlined in the petition of the petitioners for a Sanitary Dis- trict. That was modified as far as the north limits of the area was concerned. The various colorings on the map show the dif- ferent compartments of the streams, or basins are shown in dif- ferent colors, and a figure put upon the map indicating the area of that particular color. Under the head of ‘^memoranda’’ there is compiled a statement which represents the areas shown 2856 upon the map and some additional data; those statements were made by me from observations taken at the time. There was a portion of this watershed that was determined by sending men out and actually wmlking the divide out and locat- ing it in that way. Other portions are taken from topographical maps representing the best information that was available at the time it was produced. The map represents truly the mat- ters which it purports to represent to the best of the extant in- formation and the statements assembled state truly the facts. 2857 Counsel for Defendant. Professor, is this the watershed as it existed in nature, or did it contain the contemplated work of diverting the water, the natural flow in certain directions and other directions! 2858 A. The watershed as it existed at the time the map was made. There is a compartment of the watershed shown by dotted lines which represented an area which could be diverted to Lake Michigan under the Act, I think, of 1887, authorizing the diversion of the water of the Desplaines River. I don’t think there are other lines bearing upon prospective, proposed or suggested work, other than there was put upon this map as a matter of convenience the boundaries of the Sanitary District as originally petitioned for, and as finally adopted. The boundaries of the Sanitary District were put upon the map later. The dotted lines simply contain a convenient division of the 2859 watershed. I will state in regard to the history of the map that it was made up for the use at the time of the Boundary 021 Commission, in 1889, I think; and in making it up we obtained such maps as had been printed to a scale of half an inch to the mile, and proceeded to delineate section by section the watersheds from the best information, and when that had been compiled in that matter, a tracing was taken thereof, of which this is a print, with such corrections of some of the watershed lines as may have been made since. Said map received in evidence. Atlas, p. 2)954; Trans., [). 6578; Abst., p. 1927. 2862 The following portion of Keport of the Internal Imi)rove- ment Commission of Illinois was here read in evidence. ‘‘8. The Upper Illinois. ‘^The Upper Illinois division covers 56.2 miles from the head of Lake Joliet at Brandons bridge, on the Desplaines Kiver, to the head of the Henry pool at Utica bridge, though geographically, the Illinois Kiver is formed by the union of the Desplaines and Kankakee Elvers, thirteen miles below Brandons bridge. 2863 ^‘The valley of erosion headed for Lake Michigan, is a case of arrested development, with declivities adjusted to the resisting rock stratification. Through the valley bottom, the modern stream has defined its course and a normal stream-bed has developed with true flood plains, though unfilled remnants of an older and greater stream-bed still exists, showing pro- gressive shrinkage in the survey period. These old pools still aggregate a length of 22 miles and still carry a good depth of water — Lake Joliet, at 76.5 feet below Chicago datum (low water of 1847 in Lake Michigan), Lake DuPage at 90.2 feet, and Marseilles pool, originally above the Kickapoo reef, but now controlled by the dam, at 101.4 feet. All elevations refer to the low water of 1883. ^‘Between the Lakes Joliet, DuPage, are sharp pitches. Treat’s Island, and the dump of the DuPage Kiver mouth, and again over Cincinnati limestone, below Lake DuPage and opposite the mouth of the Kankakee. The Marseilles dam is 25.8 miles below the mouth of the Kankakee, and 38.8 miles below Brandons bridge. It is at the head of a descent, on the coal measures, dropping some 28 feet in six miles, and 2864 at Ottawa, at the mouth of the Fox, the level is 132.2 feet below Chicago datum. From Marseilles to Utica bridge is 17.4 miles, the bed below the rapids in St. Peters sandstone, with a fall of about half a foot per mile to the lower end of Butfalo Eock ; thence some 12 feet in four miles to Starved Eock, the declivity terminating on the water-line out-crop 0.3 miles above Utica bridge. The original low water eleva- 922 Int. Imp. Com. Hep. — Continued. tion (1871) at this point, was approximately, 147 feet below Chicago datum; but the pool level produced by the dam at Henry, is 142.2 feet below Chicago datum (low water of 1883), with a declivity of some 0.6 feet on the following two and a half miles, the channel at the head of the pool having greatly silted in recent times. ^^From the head of Lake Joliet to the head of the pool at Starved Eock, also the head of the alluvial valley of the lower Illinois is then, 55.9 miles, with an original fall of 70.5 feet, and a present fall of 4.8 feet less. The river throughout this distance has an average width of about 600 feet, gen- erally subdivided by islands below Ottawa, and the bank heights vary from 8 to 23 feet. These banks are overflowed, more or less, in two years out of three. flood record was kept at Morris by M. L. W. Claypool for the 56 years, 1834 to 1890. This shows twenty years in which the river was not out of banks, and fifty-three floods in the other 36 years. Of these seventeen exceeded 17 feet above low water, nineteen ranged from 14 to 17 feet, and seventeen ranged from 10 to 14 feet. The time out of l3anks averaged nine days for the flood years. 2865 ‘^Mr. Claypool ’s estimate of the overflowed lands above Marseilles Dam, in LaSalle and Grundy Counties, is still the most satisfactory, and these lands cover 75 per cent, of the values between Joliet and Utica. The estimate is as follows : ‘‘Under 10 feet 905 acres 11% “From 10 to 14-15 feet 4,050 acres 52% “14-15 to 18 feet 2,085 acres 27% “18 to 20 feet 739 acres 10% '‘Total 7,779 acres 100% “(20 to 23 feet 390 acres) “On a comparable basis, the total overflowed lands in Will County were estimated at 1,000 acres, 250 of which are mar- ginal lands of little value, and the remiander chiefly in Treat’s Island, and the bottoms of DuPage Eiver and Jackson Creek. “The lands between Marseilles and Utica, for the equivalent stage of 20 feet at Morris, having been estimated at 3,050 acres, about two-thirds of the area being in the four miles below Pmffalo Creek, and more affected by back water from the lower river than by head water floods. These lands are largely infertile. “The value of all these lands was carefully estimated in 3890, as follows: 11,829 acres, $618,240.00. 2866 “Mr. Claypool ’s plane of reference happens to be an even hundred feet below Chicago datum, by the last survey, and 0.3 feet above the low water of 1883 at Morris bridge (built in 1856) and 0.66 above the low water of 1887, and 923 less than a foot above the lowest known water. The highest kno^n flood at Morris was 23 feet, and was observed by William Marquis, in March, 1830. The Claypool record be- gins with Mr. Claypool’s arrival in Morris in March, 1834. In the thirty-four years (1834-67), thirteen floods occurred exceeding 17 feet, and seven of these ranged between 19.5 and 20.5 feet. The four notable floods in the twenty-two follow- ing years (1868-89), all ranged between 17 and 18 feet, the excessive height of 1883 being due to the breaking of the ice gorge and the great dam at Wilmington, and the loosing of the water stored in the 12-mile pool above. The two most notable floods since 1890 are, 1892 at 20.6 feet, and 1904 at 19.2 feet. ^‘Of the fifty-three floods, from 1834 to 1890, thirty-eight have occurred in the three months, February, March and April, the majority being identified with the spring break- up. The Kankakee usually breaks up and runs out before the ice moved at Morris and at other points in the upper Illinois, thus producing gorges and abnormal stages of water. Such action has been less frequent since the shores and islands were cleared of their timber. 2867 ‘‘The ice flood of February, 1887, was one of the four notable floods in the 1868-89 period, and its volume was carefully estimated from the heights on dams, as follows: Second-feet. “Joliet, Desplaines Eiver 5,575 “Wilmington, Kankakee Kiver 25,225 “Marseilles, Illinois Eiver 45,000 “Dayton, Fox Eiver 13,680 “Ottawa (sum of the above) 58,680 “La Salle, estimated 60,000 .“The greatest flood at Joliet in thirty-three years prior to 1890, was estimated at 6,550 feet. The greatest flood at Wilmington, in the nineteen years prior to 1890 (ice gorge flood of 1883 excepted) was estimated at 35,600 second feet. The flood of 1887 was considered extraordinary for the Fox. “Full measurements made at Morris after 1890, indicate that the ice flood of 1887 was abnormally high by about two feet, or that the estimated volumes from the dams were short by 15 to 20 per cent, which is not probable. 2868 “The flood of 20.6 feet at Morris, in May 1892, is prob- ably the greatest in the historic period, that of March, 1830, being no doubt abnormal from ice effects. This flood was measured by Charles L. Harrison, Assistant Engineer Sani- tary. District of Chicago, on May 6, and the volume found at 73,730 gecond feet. All the available data were reduced for the Sanitary District by James A. Seddon, in 1901, and the equivalents for Morris deduced as follows: (Claypool datum.) Int. Imp. Com. Rep. — Continued. “70,000 second feef 20.30 feet in height “65,000 second feet 19.47 feet in height “60,000 second feet 18.60 feet in height “55,000 second feet 17.68 feet in height “50,000 second feet 16.70 feet in height “45,000 second feet 15.65 feet in height “40,000 second feet 14.52 feet in height “35,000 second feet 13.29 feet in height “30,000 second feet 11.94 feet in height “25,000 second feet 10.43 feet in height “20,000 second feet 8.79 feet in height “15,000 second feet 6.92 feet in height “10,000 second feet 4.79 feet in height “The basin areas of the Upper Illinois are as follows : “Distance from Brandon ^s Bridge “Desplaines K., 1392 Sq. mi. ) “Kankakee E., 5148 sq. mi. i 6,540 sq. mi. 13 mi. “Morris 7,300 sq. mi. 22.7 mi. “Marseilles 7.500 sq. mi. 38.8 mi. “Ottawa (Pox K.) 10,230 sq. mi. 46.2 mi. “Utica Bridge 10,365 sq. mi. 56.2 mi. “The extreme flood expectation in the Morris-Marseilles reach, is 70,000 second feet, taking the basin as normal. The flood of 1892 seems to have reached the limit for streams in this region of the country. “The natural low water volume of the Illinois at Morris is nominal, not exceeding 250 to 350 second feet in 1887, practically at extreme low water, after allowing for canal water from Lake Michigan. A measurement of 456 second feet was made on the Kankakee Eiver near its mouth, in Sep- tember, 1867. Extreme low water at Wilmington for twelve years, 1871-83, was estimated at 420 second feet. The Des- plaines Eiver practically goes dry above Joliet. The Mazon was dry in 1867. The Fox measured 526 second feet in September, 1867. The canal authorities have measured a low water of 633 feet at La Salle. “Assuming an ordinary low water volume of 1,000 second feet, the effect of introducing 10,000 second feet from Lake Michigan, at Morris, will be to raise the water 5.2 feet above the Claypool plane, and for 14,000 feet to 6.9 feet. 0 “Extreme floods may be assigned to two causes: — Heavy winter snow on a frozen ground surface, produces a great break-up rise, followed by extreme low water, as in 1867 and 1887. Again, long continued rains fill the ground and marshes to overflowing and the excess runs away in a great flood, as in the several great floods of May and June. In long continued dry periods the storage of marshes and ponds is exhausted, and as the sub-soil is generally impermeable, extreme low water follows. In ordinary years, the floods are moderate and the low water volume well sustained. ‘‘It is evident that any improvement for navigation should modify the regimen of the stream as greatly as possible, ' rather than as little as possible, as in all official projects. In adapting the Mohawk Kiver (N. Y.) to a deepwater naviga- tion, the Board of Engineers on Deep Waterways (1897-1900) projected a depth of 30 feet, even for a navigable limit of 21 feet, in order to bring flood velocity and slope within moderate limits. In like manner the capacity of the prism in the Upper Illinois is conditioned by flood volumes, without regard to the depth required for navigation. A project de- veloped on such principles, not only provides a deep water channel, but substantially does away with overflows, and makes possible water-power development.” 2871 Q. You make state, if you know, whether the contributions by the I. & M. Canal to the Desplaines Kiver, to which your attention was directed on your cross-examination, equal in amount the depletion from the Desplaines River concerning which you testifled on your direct. A. I don’t think I could make a rela- tive estimate of that. I would say that from 1848 to 1871 con- tributions from extraneous sources probably did not equal the de- pletion by the canal. After the deepening of the canal in 1871 I should doubt whether the aggregate volume of water contributed to the Illinois River by means of the Illinois and Michigan Canal from Lake Michigan was equal to the amount that went from the Desplaines Valley to Lake Michigan. 2872 Q. I will ask you to state whether it is not the fact that with the invention of the motor boat there has not been a great revival of shallow draft navigation in the same region? A. There has been. Be-cross Examination, 2873 Q. Where has the invention of the motor boat revived greatly water navigation? A. On the canals of the State of Ohio, where, on account thereof, two years ago the Legislature appropriated half a million, something over half a million dollars, and the Legislature which has just adjourned has appropriated an- other half million dollars for the purpose of cleaning out these old canals, and rebuilding the locks, rehabilitating the commerce of the canals. 926 Cooley,— Re-cross Exam. — Continued., A number of bayous of Louisiana and in tbe delta country the invention of the motor-boat has caused a revival of navigation. In respect to that particular development I refer you to a memoir by Judge R. S. Taylor of the Mississippi River Commission pub- lished within the last few months, I think. When I was mak- ing the investigation for the City of Rochester in the year 1905, I found that motor boats were used upon the Erie Canal for de- livery by the grocers there in the City of Rochester, in delivering their products along the canal for a distance of forty miles or more from Rochester, in competition with two railways which ran on either bank of the canal. I don’t know of their actual use upon a stream like the Desplaines River. The art is very young yet. I have seen some kinds of motor boats. I have not 2875 had any experience in the operation of them personally. The towpath bank at Dresden Heights would come down on rock. Steam canal boats go from Ottawa through the canal to Marseilles. They do not go into the canal from the river at Ot- tawa. Q. If it were true that the largest portion of the water con- tributed through the canal went down the Desplaines River, then it materially increased the low water level of that river, did it not? A. The extreme actual volume would be accentuated. The extent of the contribution of the depth on the ruling bar would be- increased. The discrepancies between various data would not affect 2876 the ability to determine the depth at any particular point from the markings and plattings upon any individual pro- file. Q. Which bank, a new bank or an old bank, would be most susceptible to the injurious influences which you have described from the raising of a pool, one side of it resting upon such bank? A. I assume that the new bank would be built with especial reference to the condition, and the old bank might not be. I do not know that I could discriminate. AWiere the old bank is subject to a new condition I am inclined to think that it might be better to have an entirely new bank adapted to the new 2877 conditions. It is a nice question in raising a dam or em- bankment whether it is wise to attempt to utilize the old 927 bank or to construct a new one. In the absence of any knowledge to the contrary in regard to the conditions existing, I should as- sume that the old bank was preferable, Q. Speaking of the relative contributions of the Kankakee and the Desplaines Kiver to the Illinois, since the drainage water is turned in, isn’t it true that the maximum flow of the Desplaines Eiver is 1,500,000 cubic feet per minute including 600,000 cubic feet per minute from Chicago and that the maximum flood of 2878 the Kankakee Eiver is 3,500,000 cubic feet per minute? A. I think that the statement is substantially correct, barring as to the maximum in the two streams since the Drainage Canal was opened, barring the fact that I do not know that the maxi- mum includes the 600,000 feet mentioned in the question. I would like at the proper time to qualify that by explanation. Q. I understand you to mean that the bank at Dresden Heights itself was actually higher in number of feet than the bank above Adams’ Dam, is that what you meant or not? A. It is what I meant and also that the elevation above in the plane was higher. li e- re-di rect Exa ni in at ion. 2881 At the height of the Dresden Dam there is a considerable intermediate width of earth between the canal and the river upon which and across which the works shown on the plan intro- duced here are proposed to be located and have been located. At the Adams’ Dam there is no such intermediate strip of ground. Q. Suppose that a man were here on the Drainage Canal in a boat; got down, descended this lock which he has described, 42^ feet of lockage down between Dockport and Joliet, and he was there in his boat in the Drainage Canal, and was going by way of Desplaines Eiver and the Illinois Eiver to St. Louis, what dams would he encounter? A. He would encounter Dam No. 1 at Joliet, the Marseilles Dam and the four dams upon the old Illinois Eiver belonging to the State and the United States. That is all below the Drainage Canal. These dams were navigation dams put in for increasing the duration of the navigation periods. They were not used for milling purposes. 928 2883 Cooley R, e-re-cross Examination. The dam at Marseilles is used for milling purposes. Q. How many bridges would a man encounter starting at the point that Mr. Starr suggested, such bridges as would be an ob- struction to steamboat navigation? A. Thirteen: Nine, I think, are in the Desplaines Eiver. The first one you would reach would be the E. J. & E. Eailroad bridge. I think there is a tow- path bridge in there. The next is the Eobey street bridge, the next Jackson street bridge, the next Cass street, the next Jeffer- son street, the next Chicago, Eock Island & Pacific Eailway bridge, the next the McDonough bridge, the next Brandon road bridge, the next Millsdale bridge, the next Smith’s bridge. I omitted Brandon’s bridge, and the towpath bridge which I did not have in mind. The piers below Smith’s bridge are right in the stream ready for the restoration of the aqueduct on those piers? 2884 Q. Would you ever restore the aqueduct on those piers? A. I hope never to see it done. I think if we had to re- store the aqueduct it would be restored on those piers. 2886 Thereupon counsel for complainant offered in evidence the blueprint exhibit which constitutes part of what is known as tlie Flowage Contract under date of September 2, 1904, furnished by counsel for defendant. Said blueprint exhibit was received in evidence. (Atlas, p. 3955, Trans., p. 6580; Al)st., p. 1928.) Counsel fok Complaix^ant. I have furnished the other side with a list of exhibits here which ai'jpear in the deposition, and with the document itself. They have examined them and I believe 2887 most of them have been formally offered as the reading went along. There were two or three instances, however, where it was not done. Counsel for complainant read said list and offered in evidence documents as follows: Hildebrand Exhibit 3, referred to in the deposition at ])age 19; (Atlas, i>age 3943; Trans., \k 6555; Abst., p. 1922); Will County Plat Book, page 15 (Atlas, page 3917; Trans, p. 6488; Abst., [). 1916), and ])age 25 of said ])lat book (Atlas, 929 page 3918; Trans., p. 6490; Abst., p. 1916), referred to in deposi- tion at page 15 ; Also the following exhibits offered at the taking of the deposi- tion of Kobert E. Orr: Orr Exhibit 1 (Atlas, page 3923; Trans., p. 6511; Abst., p. 1917) ; Orr Exhibit 2 (Atlas, page 3923a; Trans., p. 6513; Abst., p. 1918) ; Orr Exhibit 3 (Atlas, page 3924; Trans., p. 6515; Abst., p. 1918) ; Orr Exhibit 4 (Atlas, page 3925; Trans., p. 6517; Abst., 1919) ; Orr Exhibit 5 (Atlas, page 3925; Trans., p. 6517; Abst., p. 1919) ; Orr Exhibit 6 (Atlas, page 3926; Trans., p. 6521; Abst., p. 1919); Also the Eeport and accompanying memorandum of the Com- missioners to survey the northern boundary line of Illinois, 1833, offered at the taking of the deposition of Christian T. Heydecker (App. II, page 3884; Trans., p. 5706; Abst., p. 1723) ; Also exhibit, blueprint of boat offered at the taking of the depo- sition of John M. Sv/eeney (Atlas, page 3946; Trans., p. 6561; Abst., p. 1924) ; Also the following exhibits offered at the taking of the deposi- tion of Geo. B. Fox: Fox Exhibit 1 (Atlas, page 3947; Trans., p. 6563; Abst., p. 1924) ; Fox Exhibit 2 (Atlas, page 3948; Trans., p. 6565; Abst., 1924) ; Also Exhibit , Map of Chicago, offered at the taking of the depo- sition of Benezette Williams (Atlas, page 3952; Trans., p. 6574; Abst., p. 1926). All of the said documents were received in evidence. Also certified copies of the following exhibits to the bill of com- plaint herein: Exhibit ‘‘A” of the bill referred deposition p. 23, Abst., p. 28. Exhibit ‘‘B” of the bill referred deposition p. 56, Abst., p. 34. Exhibit ‘MC” of the bill referred deposition p. 62, Abst., p. 47. Exhibit ‘‘D” of the bill referred deposition p. 70, Abst., p. 40. Exhibit ‘^E” of the bill referred deposition p. 71, Abst., p. 41. Exhibit of the bill referred deposition p. 73, Abst., p. 42. Exhibit ‘‘G” of the bill referred deposition p. 74, Abst., p. 43. • Exhibit of the bill referred deposition p. 74, Abst., p. 44. Exhibit of the bill referred deposition p. 75, Abst., p. 44. Exhibit ‘M” of the bill referred deposition p. 75, Abst., p. 46. Exhibit ‘X” of the bill referred deposition p. 76, Abst., p. 36. 930 The said documents which were made exhibits to the bill of com- plaint herein were received in evidence and reference is hereby made to the copy of each of said documents as attached to said bill, and each thereof is hereby incorporated herein by such refer- ence. Counsel for complainant offered and put in evidence Complain- ant’s Exhibit 1, as follows: 2888 ^‘This Indentuke, made this fifth (5th) day of January, A. D. 1905, between The Canal Commissioners of the State of Illinois, party of the first part, and Charles A. Munroe, of the City of Chicago, County of Cook, and State of Illinois, party of the second part, WiTNESSETH, That the said party of the first part in con- sideration of the covenants of the said party of the second part hereinafter set forth does by these presents lease to the said party of the second part the following described prop- erty, to-wit: The bed and banks of what is known as the Kankakee Feed- er, and the reserve strip on each side thereof, in Section Nine (9), Township Thirty-three (33) North, Eange Nine (9) East of the Third Principal Meridian, Will County, Illinois. To have and to hold the same to the said party of the sec- ond part from the fifth (5th) day of January, A. D. 1905, until the fifth (5th) day of January, A. D. 1925. And the said party of the second part in consideration of the leasing of the premises as above set forth covenants and agrees with the said party of the first part to pay to the said party of the first part as rent for the same the sum of Sev- enty-five ($75.00) Dollars per annum, payable, to-wit: On the fifth (5th) day of January of each and every year. The said party of the second part further covenants with the said party of the first part that at the expiration of the time mentioned in this lease peaceable possession of the said premises shall be given to the said party of the first part and that upon the non-payment of any annual installment of said rent on the fifth day of January of any year and upon a failure, for thirty days, from the fifth day of January, in any year, to make pay- ment of said annual rental, said lease shall terminate and be at an end said first party shall recover possession as if the same was held by forcible detainer. 931 It is further stipulated and agreed by and between the par- ties hereto, that said party of the second part will not sub-let said premises or any portion thereof, for the erection of build- ings, without the consent in writing of the said The Canal Commissioners. It is further stipulated and agreed that in case The Canal Commissioners or the State of Illinois shall determine to sell said Kankakee Feeder, then in that event said State of Illi- nois or said The Canal Commissioners, shall have the right to cancel this lease upon giving said ])arty of the second part thirty (30) days’ notice in writing of said determination to sell said feeder; and at the expiration of said thirty (30) days this lease shall become null and void and said State of Illinois or said The Canal Commissioners shall have the right to take immediate possession of the premises hereby leased. The covenants herein contained shall extend to and be bind- ing upon the heirs, executors and administrators of the par- ties to this lease. In witness whekeof, the party of the first part has caused this instrument to be signed by its President and attested by its Secretary and duly authorized its corporate seal to be hereto attached, and said party of the second part has here- unto set his hand and seal the day and year first above writ- ten. The Canal Commtssioneks of the State of Illinois, By C. E. Snively, President. (Seal) By Chakles A. Munroe, W. R. Newton, Secretary. The Seal of the Canal Commissioners.” Certificate of John M. Snyder, Acting Secretary, that the above is a true copy. 2891 Counsel for complainant offered in evidence Complain- ant’s Exhibit 2, which vras excluded. Said document so offered and excluded, is as follows : Memorandum of Agreement made and entered into between the Canal Commissioners of the State of Illinois, party of the first part, and the Economy Light & Power Company of Joliet, Illinois, a corporation organized and doing business under the laws of the State of Illinois, party of the second part. 931a Complainant’s Ex. 2, — Pole Line Contract Dam No. 1. — Con. WiTNESSETH, that tile Canal Commissioners in considera- tion of the covenants and agreements hereinafter set forth, to be kept and performed by the said party of the second part, hereby grants to said party of the second part the right to place and thereafter maintain a line of poles along the tow- path bank of the Illinois and Michigan Canal between the Economy Light & Power X^ompany’s plant in Joliet and Ash- land avenue, in the City of Chicago, Cook County; said poles to be used for the sole and only purpose of stringing thereon the wires of the said party of the second part to carry elec- tricity from and generate it at the present plant of the said Economy Light and Power Company at Dam No. 1 in Joliet. To HAVE AND TO HOLD Said privilege to the party of the second part, its successor and assigns, until the seventeenth day of July, A. D. nineteen hundred and sixteen (1916) so long as it shall perform the obligations required of it by this agreement: Pkovided that the Canal Commissioners re- serve the right at any time, to require any change to be made in the location of the said line of poles. 2892 Said line of poles and wireE shall be located and built under the direction and supervision of the Superintendent of said Canal, and where, in the judgment of said Superintendent, the topography of the ground makes it necessary or expedi- ent the berm bank of said Canal shall be used for a short distance for said line of poles, authority is hereby given to said party of the second part to cross said Canal and place poles along said berm bank; the necessity or expediency therefor, the place and manner of crossing and placing said poles along said berm bank to be subject to the approval of, and done under the direction and supervision of said Super- intendent. In consideeation of the above, the said party of the sec- ond part, for itself, its successor and assigns, covenants and agrees to furnish to the Canal Commissioners and maintain during the continuance of this contract, free of all expense to the said Canal Commissioners, or the State of Illinois, one group of five incandescent lights of sixteen candle power each, at each and every lock between Jackson street, Joliet, and Ashland avenue, Chicago, including the locks at Jackson street and Bridgeport, and all lights required by said Canal Commissioners at the State Yards, shops and offices, between 931b Jackson street, Joliet, and Ashland avenue, Chicago, and the Superintendent’s house and grounds at Lockport. In further consideration hereof, the said Economy Light and Power Company covenants and agrees to furnish the Canal Commissioners, during the continuance of this con- tract, free of expense to the State, sufficient, continuous elec- trical power to drive one fifty or twenty-five horse-power alternating current electric motors to their full capacity; the 2893 current required to do this work to he delivered at the motor or motors to be installed by the said Canal Commissioners at Lockport. The said party of the second part further covenants and agrees that it will construct and maintain said pole line and wires in a good and workmanlike manner and will so main tain and operate the same as not to interfere with business along said Canal, or the business or property of other per- sons or corporations ; and also assume all liability for all debts of personal injuries, or injury to property of others which may occur by reason of the construction or operation of said pole line; and that it will forever indemnify and save harmless the Canal Commissioners and the State of Illinois from and against all claims or liabilities for or by reason of any damages, the risk of which is hereb}^ assumed by the party of the second part; and also from and against all claims, liabilities or judgments on account of any death or injury or damage to personal property, the liability for which is assumed by the party of the second part; that the party of the second part agrees to pay all charges and ex- penses that may be incurred, or any judgments that may be rendered by reason thereof. Whereof the parties hereto have caused this agreement to he signed by their respective officers, thereunto duly author- ized the respective seals to be hereunto attached and attested by their respective secretaries this fifth day of December, A. D. 1901. The Canal Commissioners By C. E. Snively, Prest. W. K. Newton, Secy. 931c 2894 Here follows certificate of John M. Snyder, Acting Secre- tary, that the above is a true and correct copy. 2895 Counsel for Complainant offered in evidence Complainant’s Exhibit 3, which was excluded. Said document so offered and excluded, is as follows : 2896 This agkeement, made and entered into this third (3rd) day of October, A. D., 1902, between the Canal Commission- ers of the State of Illinois, party of the first part, and Rob- ert Gaylord, of the City of Chicago, County of Cook, and State of Illinois, party of the second part: Witnesseth, That Whereas, the said parties hereto have this day and contemporaneonsly- herewith, executed a cer- tain contract with eacll other of even date herewith, in rela- tion to the building of a dam in the Desplaines River and the connection by locks of the waters of said Desplaines River with said Illinois and Michigan Canal between South street and Jackson street in the City of Joliet as in said contract more particularly set forth, and with reference to the rais- ing of the water of said Desplaines River as a result of the building of said dam, and the raising of the tow-path on the bank of said Canal, and to pay compensation to said party of the first part for the right to flow the bank of said canal and the banks of said river, reference to which contract is hereby made for greater certainty; and Wheeeas, The said party of the first part insists that the said water of said Desplaines River shall not be raised by said dam until compensation is paid said party of the first part by said party of the second part for such flowage, etc. Now^ THEREFORE, it is hereby expressly agreed by and be- tween the parties hereto that said party of the first part does not consent to, nor shall said contemporaneous contract be construed as a consent to the erection of said dam or to the raising of the water in said Desplaines River as above contemplated, until said party of the second part shall have agreed with the party of the first part upon the compensation 2897 to be paid to the said party of the first part for the right to flow said water of said Desplaines River upon said Canal banks and banks of said river, and for the destruction of the water power on said Channahon level and paid said com- pensation to said party of the first part. And said party of the second part in consideration of the 931(1 promises and tlie execution of said contemporaneous con- tract, above referred to, hereby covenants and agrees to and with said party of the first part, that be will not raise the water in said river or cause any water to be backed up to or on said Cliannalion level, until lie, the said party of the sec- ond part, has agreed with said party of the first part upon the amount of such compensation for the right to flow said water upon said canal banks and the banks of said river and for the destruction of the water power of said party of the first part on said Channahon level, and shall also have paid the amount of such compensation, so agreed upon, to said party of the first part. It is further herein stipulated liy and between the parties hereto, that all })rovisions, covenants and agreements herein shall extend to and be binding on the successors and legal representatives of the respective parties. In witness whereof, the said ]iarty of the first part has caused this instrument to be executed by its President and Secretary, and corporate seal attached, and said party of the second part under his hand and seal. The Canal Commissioners, By C. E. Snively, President. By W. R. Newton, Secretary. The seal of the canal commissioners of the 2898 State of Illinois. Robert Gaylord, (Seal) Here follows certificate of John M. Snyder, Acting Secretary, that the above is a true and correct copy. 2899 Thereupon, counsel for complainant offered in evidence Complainant’s Exhibit 4, which was excluded. Said docu- ment so offered and excluded, is as follows : 2900 This agreement, made and entered into this third day of October, A. I). 1902, between The Canal Commissioners of The State of Illinois, party of the first part, and Robert Gay- lord, of the City of Chicago, County of Cook and State of Illinois, party of the second part: Witnesseth, that whereas, the said Gaylord is about to construct in the Hesplaines River a dam at a point in said 931e Exhibit 4 , — Gaylord Contract. — Continued. river known as the head of Lake Joliet, and as indicated on the blue print deposited with the said Canal Commissioners and identified by the signature of said Gaylord, for the pur- pose of developing water power, to be used in operating a grist mill which he is about to erect. And, whereas, the said Eohert Gaylord proposes thereby to improve the navigation of the Desplaines Eiver, and after such improvement shall he made, desires to connect said river with the Illinois and Michigan Canal, so that grain and merchandise in boats may he transported upon said canal and river to docks convenient to said mill. And whereas, the said Gaylord claims that the construc- tion of said dam as contemplated by him, with its crest at minus fifty-three ( — 53) Chicago City Datum, will raise the water of said Desplaines Eiver to the Channahon level of said canal, in case the flow in the Desplaines Eiver shall he made equal to six hundred thousand (600,000) cubic feet per minute; and that it will not injure the water power at Jack- son Street Dam in any way. And whereas, it is believed that a connection of said Illi- nois and Michigan Canal with the Desplaines Eiver, between South street in the City of Joliet, and Jackson street, in said city, would by reason of the transportation of materials to and from said mill, and the traffic which would necessarily 2901 be created, materially increase the business upon and the revenue from said canal, provided that the slack water cre- ated by said dam in said Desplaines Eiver be so created by said dam in said Desplaines Eiver be so created that it will not injure the water power at said dam, at Jackson street. And whereas. The said Gaylord recognizes the right of the said party of the first part to compensation for the flowage of the canal and river banks as a result of the erec- tion of said dam, as well as to compensation for the destruc- tion of the water power on the said Channahon level and agrees to pay them therefor. Noav, therefore, the said party of the first part in con- sideration of the foregoing and the covenants and agree- ments of said party of the second part hereinafter speci- fied, hereby agrees that the said Eohert Gaylord, party of the second part, shall have the right and authority, under the direction and supervision of the said party of the first 931f part, to connect the said Illinois and Michigan Canal with the said Desplaines liiver, at such a point, between South street in the* City of Joliet and Jackson street in said city, by a suitable lock of the kind and character to be designated by said party of the first part. Said lock shall be constructed at the sole cost and expense of the said party of the second })art and under the direction and supervision and to the satisfaction of said party of the first part. It is herein further expressly provided by and between the |)arties hereto that the said lock shall thereafter be main- tained and operated at the sole cost and expense of said party of the second part; and said party of the second ])art, in consideration of the premises hereby agrees to pay the cost of the original construction of said lock and of the main- tenance and renewal thereof and all the expenses of 0 })erat- ing the same. And said party of the second ]>art, in consideration of the 2902 premises, hereby agrees that when the waters of said Des- plaines Elver are raised by said dam, with a crest at minus fifty-three ( — 53) Chicago City Datum, he will, at his own sole cost and expense connect said Illinois and Michigan Canal with said Desplaines River with a suitable lock the same to be built under the supervision of said party of the first part and to be thereafter subject to the exclusive con- trol of the said party of the first part; and that he, the said party of the second part, will pay all the expense of main- tenance and operation of said lock to said party of the first part on demand. And said party of the second part further covenants and agrees with the said party of the first part that at no time subsequent to the construction of said dam, shall the level of the said Desplaines River be more than one foot below the Channahon level of said Illinois and Michigan Canal, nor shall the level of said river be raised to a point that it will at any time interfere with the water power created by said dam at Jackson street. And said party of the second part further covenants and agrees to and with said party of the first part that before the level of the water of said Desplaines River shall be raised as hereinbefore contemplated, he will raise the tow- path bank of said canal to such a height as will prevent all 931g Exhibit 4 , — Gaylord Contract.— Continued. overflow from said Desplaines Eiver at its highest stage, and in so raising the tow-path, he will do it in such a manner as not to interfere with its present uses, and under the di- rection and supervision of, and in a. manner satisfactory to the said party of the first part, and that in case it shall be ' necessary in the opinion of the said party of the first part to riprap said tow-path hank so raised, he will do so at his own sole cost and expense, or notice from said party of the first part. And said party of the second part covenants and agrees in consideration of the premises to and with the said party 2903 of the first ])art, that he will pay and compensate said party of the first part for the right to flow the bank of said canal and banks of said river, such compensation to be hereafter agreed upon by and between the parties hereto, and all dam- ages which said party of tlie first part may sustain by rea- son of the flowage of such water upon and the taking of the banks of said canal and river, for such flowage of water; and that he will also pay to said party of the first part the full value of and compensation for the destruction of the water power of, or under the control of said party of the first part on the said Channahon level, by reason of the backing up and raising of the water of said river by said dam, so to be erected as aforesaid. It is further expressly agreed by and between the parties hereto that the said party of the first part reserves and shall have the right to annul this contract whenever in their judg- ment the same shall be found to conflict with the interests of the State of Illinois or said canal and in case the con- stniction of said dam or of said lock, or either of them, shall be found to interfere with or prevent the proper operation of said canal or shall have the etfect in any manner to injure the water power at said Jackson Street Dam; that then and in such case the said party of the second part will, upon written notice from the said party of the first part, so cor- rect said dam or lock as to remove such injury and on failure so to do, said party of the first part shall have the right to enter upon the said dam or lock and make such alterations therein as shall or may he necessary in their judgment to re- move such interference with the proper o])eration of said canal and to restore said water power to its former con- 931h dition, at tlie sole cost and expense of the said party of the second part. It is further herein stipulated by and between the parties 2904 hereto, that all provisions, covenants and agreements herein, shall extend to and be binding on the successors and legal representatives of the respective parties. It is further covenanted and agreed, on the part of the said party of the second part, that he will not assign this contract or any part thereof, without the consent, in writing, of the party of the first part. Ix WITNESS WHEREOF, the Said party of the first ]iart has caused this instrument to be executed by its President and Secretary and corporate seal attached, and said ]iarty of the second part under his hand and seal. The Canae Commissioners By C. E. S NIVEL Y, President; By W. R. Newton, Seeretary. Robert Gaylord. The Seal of the Board of Canal Commissioners of the State of Illinois. Here follows certificate of John M. Snyder, Acting Secretary, that the above is a true and correct copy. Counsel for complainant read in evidence Complainant’s Ex- hibit 5, as follows: 2907 ‘Elugust 10, 1907. Dear Sir: In accordance with contract provisions you are hereby noti- fied that Mr. William Keough will act as inspector for The Canal Commissioners in connection with your work at the mouth of the Kankakee River. Very respectfully. General Superintendent. Mr. Chas. A. Munroe, Economy Light & Power Co., Joliet, 111.” 932 Counsel for complainant offered in evidence Senate Eesolution No. 26 of the 45tli General Assembly, as follows : 2908 ^‘Senate Joint Eesolution No. 26. Eesolved by the Senate, the House of Eepresentatives con- curring Herein, That there shall be submitted to the ele'ctors of this State at the next election of members of the General Assembly, a proposition to amend the constitution of this State, to-wit: Eesolved, That the separate section of the constitution of this State relating to the canal be amended to read as follows : The Illinois and Michigan Canal, or other canal or water- way, owned by the State shall never be sold or leased until the specific proposition for the sale or lease thereof shall first have ])een submitted to a vote of the people of the State at a general election, and have been approved by a majority of all the votes polled at such election. The General Assembly shall never loan the credit of the State or make appropriations from the treasury thereof in aid of railroads or canals. Provided, That any surplus earnings of any canal, waterway or water power may be appropriated or pledged for its en- largement, maintenance or extension; and. Further Provided, That the General Assembly, by suitable legislation, provide for the construction of a deep waterway or canal from the present water power plant of the Sanitary District of Chicago, at or near Lockport, in the Township of Lockport, in the County of Will, to a point in the Illinois Elver at or near Utica, which may be practical for a general plan and scheme of deep waterway along a route which may be deemed most advantageous for such plan of deep waterway; and for the erection, equipment and maintenance of power plants, locks, bridges, dams and appliances sufficient and suit- able for the development and utilization of the water power thereof; and authorize the issue, from time to time, of bonds of this State in a total amount not to exceed twenty million dollars, which shall draw interest, payable semi-annually, at a rate not to exceed four per cent, per annum, the proceeds whereof may be applied as the General Assembly may pro- vide, in the construction of said waterway and in the creation, equipment and maintenance of said power plants, locks, bridges, dams and appliances. All power development from said waterway may be leased in part or in whole, as the General Assembly may by law pro- vide, but in the event of any lease being so executed, the ren- tal specified therein for water power shall be subject to a revaluation each ten years of the term created and the income therefrom shall be paid into the treasury of the State. Adopted by the Senate October 16, 1907.” Counsel for complainant offered in evidence case of the Mon- tello, 20 Wallace, page 439, as follows: 2915 ‘‘This court held in the case of The Daniel Ball, that those rivers must he regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And a river is a navi- gable water of the United States when it forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be carried with other States or foreign countries in the customary modes in which such com- merce is conducted by water. Apply these tests to the case in hand, and we think the question must be answered in the af- firmative. The Fox River has its source near Portage City, Wiscon- sin, and flows, in a northeasterly direction, through Lake Winnebago into Green Bay, and thence into Lake Michigan, and by means of a short canal of a mile and a half it is con- nected with Portage City with the Wisconsin River, which empties into the Mississippi. From its source to Oshkosh the river is frequently spoken of as the ‘Upper Fox.’ From Lake Winnebago to Green Bay it is called the ‘Lower Fox.’ There are several rapids and falls in the river, but the ob- structions caused by them have been removed by artificial 2916 navigation, so that there is now, and has been for several years, uninterrupted water communication for steam vessels of considerable capacity from the Mississippi to Lake Michi- gan, and thence to the St. Lawrence, through the Wisconsin and Fox Rivers; and steamboats have passed, and are con- stantly passing, over these rivers with passengers and freight destined to points and places outside of the State of Wiscon- sin. It is said, however, that although the Fox River may now be considered a highway for commerce, over which trade and travel are, or may be, conducted in the ordinary modes of trade and travel on water, it was not so in its natural state, and, therefore, is not a navigable water of the United States within the purview of the decisions referred to. It is true, without the improvements by locks, canals and dams. Fox River, through its entire length, could not be navi- gated by steamboats or sail vessels, but it is equally true that it formed, in connection with the Wisconsin, one of the earliest and most important channels of communication betvv^een the Upper Mississippi and the lakes. It was this route which 2917 Marquette and Joliet took in 1673 on their voyage to dis- cover the Mississippi; and the immense fur trade of the North- 934 The Montello, 20. Wall.^ 439. — Continued. west was carried over it for more than a century. Smith, in his History of Wisconsin, says: ‘At this time (1718), the three great avenues from the St. Lawrence to the Mississippi were, one by the way of the Fox and Wisconsin Rivers, one by way of Chicago, and one by way of the Miami of the Lakes, when, after crossing the i^ortage of three leagues over the summit level, a shallow stream led into the Wabash and Ohio.’ It is, therefore, apparent that it was one of the highways referred to in the Ordinance of 1787, and, indeed, among the most favored on account of the short portage between the two rivers. In more modern times, and since the settlement of the country, and before the improvements resulting in an unbroken navigation were undertaken, a large interstate com- merce has been successfully carried on through this channel. This was done by means of Durham boats, which were vessels from seventy to one hundred feet in length, with twelve feet beam, and drew when loaded two to two and one-half feet of water. These boats, propelled by animal power, were able to navigate the entire length of the Fox River, with the aid of a few portages, and would readily carry a very considerable tonnage. In process of time, as Wisconsin advanced in wealth and population, and had a variety of products to exchange for the commodities of sister States and foreign nations, Dur- ham boats were found to be inadequate to the wants of the country, and Congress was appealed to for aid to improve the navigation of the river, so that steam power could be used. This aid was granted, and since the river has improved commerce is carried over it in one of the usual ways in which commerce is conducted on the water at the present day. But commerce is conducted on tlie water even at the present day, through other instrumentalities than boats propelled by steam or wind. And, independently of the Ordinance of 1787, de- claring the ‘navigable waters’ leading info the Mississippi and St. Lawrence to be ‘common highways,’ the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficul- ties attending navigation. If this were so, the public would be deprived of the use of many of the large rivers of the coun- try over which rafts of lumber of great value are constantly taken to market. 2918 It would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use by the public for purposes of transporta- tion and commerce affords the true criterion of the naviga- bility of a river, rather than the extent and manner of that use. If it is capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be 935 conducted, it is navigable in fact, and becomes in law a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are, or may become, the mode by which a vast commerce can be conducted, and it would be a mischievous rule that would exclude either in determining the navigability of a river. It is not, however, as Chief Justice Shaw said, ‘every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.’ 2919 The learned judge of the court Telow rested his decision against the navigability of the Fox liiver below the DePere Eapids chiefly on the ground that there were, before the river was improved, obstructions to an unbroken navigation. This is true, and these obstructions rendered the navigation dif- ficult, and prevented the adoption of the modern agencies by which commerce is conducted. But with these difficulties in the way commerce was successfully carried on, for it is in proof that the products of other States and countries were taken up the river in its natural state and from Green Bay to Fort Winnebago, and return cargoes of lead and furs ob- tained. And the customary mode by which this was done was Durham. boats. As early as May, 1838, a regular line of these boats was advertised to run from Green Bay to the Wiscon- sin Portage. But there were difficulties in the way of rapid navigation even with Durham boats, and these difficulties are recognized in the Ordinance of 1787, for not only were the ‘navigable waters’ declared free,; but also the ‘carrying- places’ between them, that is, places where boats must be par- tially or wholly unloaded and their cargoes carried on land to a greater or less distance. Apart from this, however, the rule laid down by the district judge as a test of navigability cannot be adopted, for it would exclude many of the great rivers of the country which were so interrupted by rapids as to require artificial means to enable them to be navi- gated without break. Indeed, there are but few of our fresh-water rivers which did not originally present serious obstructions to an uninterrupted navigation. In some cases, like the Fox River, they may be so great while they last as to prevent the use of the best instrumentalities for carrying on commerce, but the vital and essential point is whether the nat- ural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with dif- ficulties by reason of natural barriers, such as rapids and sand-bars. 2921 The views that we have presented on this subject receive 936 The Montello, 20 Wall., 439. — Continued. support from the courts of this country that have had occa- sion to discuss the question of what is a navigable stream. From what has been said, it follows that Fox River is within the rule prescribed by this court in order to determine whether a river is a navigable water of the United States. It has always been navigable in fact, and not only capable of use, but actually used as a highway for commerce, in the only mode in which commerce could be conducted, before the nav- igation of the river was improved. Since this was done, the valuable trade prosecuted on the river, by the agency of steam, has become of national importance. And emptying, as it does, into Green Bay, it forms a continued highway for interstate commerce. The products of other States and for- eign countries, which arrived at Green Bay for points in the interior, were formerly sent forward in Durham boats, and since the completion of the improvements on the river these products are reshipped in a small class of steamboats. It would be strange, indeed, if this difference in the modes of conducting commerce, both of which, at the times they were employed, were adapted to the necessities of navigation, should operate a change upon the national character of the stream. 2922 Before the Union was formed, and while the French were in possession of the territory, the Wisconsin and Fox Rivers constituted about the only route of trade and travel between the Upper Mississippi and the Great Lakes. And since the territory belonged to us this route has been regarded as of national importance. To preserve the national character of all the rivers leading into the Mississippi and St. Lawrence, and to prevent a monopoly of their waters, was the purpose of the Ordinance of 1787, declaring them to be free to the pub- lic; and so important was the provision of this ordinance deemed by Congress that it was imposed on Wisconsin as a condition of admission into the Union. Congress, also when the State was admitted, made to it a grant of lands, in order that the Fox and Wisconsin might be united by a canal, their navigation improved, and the rivers made in fact, what nature meant they should be, a great ave- nue for trade between the Mississippi and Lake Michigan. The grant was accepted, the navigation improved, and the canal constructed. These objects were, however, accom- plished by a private corporation chartered for the purpose, which was allowed to charge tolls as a source of profit. The exaction of these tolls created dissatisfaction outside of the State, and Congress, in 1870, in response to memorials on the subject of the importance of these rivers as a channel of commerce between the States, passed an act authorizing the general Government to purchase the property, and after it was reimbursed for advances, to reduce the tolls to the lowest 937 point wMch should be ascertained to be sufficient to operate the works and keep them in repair. Although this legisla- tion was not needed to establish the navigability of these rivers, it shows the estimate put by Congress upon them as a medium of communication between the lakes and the Upper Mississippi. It results, from these views, that steamboats navigating the waters of the Fox River are subject to Gov- ernmental regulation. ’ ^ Counsel for complainant offered and put in evidence Chap- ter 4, Imiay’s America, page 485, as follows: No. IV. 2935 A topographical description of Virginia, Pennsylvania, Maryland, and North Carolina; comprehending the Rivers Ohio, Kanhaway, Sioto, Cherokee, Wabash, Illinois, Missis- sippi, &c., the climate, soil, and produce, whether animal, vegetable, or mineral; the mountains, creeks, roads, distances, latitudes, &c., of these countries. By Thomas Hutchins, cap- tain in the 60th regiment of foot. With a plan of the rapids of the Ohio, a plan of the several villages in the Illinois country, a table of the distances between Fort Pitt and the mouth of the Ohio; and an appendix, containing Mr. Pat- rick Kennedy’s journal up the Illinois River; and a correct list of the different nations and tribes of Indians, with the number of fighting men, &c. (1778.) The present topographical description of the parts above mentioned, comprehends almost the whole of the country lying between the 34th and 44th degrees of latitude, and the 79th and 93d degrees of longitude, and describes an extent of ter- ritory of about 850 miles in length, and 700 miles in breadth; and one which, for healthiness, fertility of soil, and variety of productions, is not perhaps surpassed by any on the habit- able globe. Those parts of the country lying westward of the Allegany mountains, and upon the Rivers Ohio and Mississippi, and upon most* of the other rivers and lakes here described, were done from my own surveys, and corrected by my own obser- , vations and latitudes, made at different periods preceding and during all the campaigns of the last war, in several of which I acted as engineer, and since in many reconnoitering tours, which I made through various parts of the country between the years 1764 and 1775. 2936 I have compared my own observations and surveys, re- specting the lakes, with those made by Captain Brehm, of the 60th regiment of foot (who was for many years employed as an engineer in North America), and I find that they corres- pond with more exactness than surveys usually do, which are made by different persons at different times ; and I am happy 988 Extract , — 1 mlay’s Arne rica . — C out in uecl . in this opportunity of expressing my obligations to this gen- tleman, for the cheerfulness with which he furnished me with his surveys and remarks. It is tit also, that I should take notice that, in the account which I have given of several of the branches of the Ohio and Allegany Eivers, I have adojited the words of the late in- genious Mr. Lewis Evans, as I found he had properly de- scribed them in the analysis to his map of the middle colo- nies. And as do that portion which represents the country lying on the eastern side of the Allegany mountains I take the liberty of informing my readers, that my reason for in- serting it, was to show the several communications that are 2937 now made, and others which may be hereafter easily made, between the navigable branches of the Ohio and Allegany Rivers, and the rivers in Virginia and Pennsylvania, which fall into the Atlantic Ocean from the west and northwest. London, November 1, 1778.” P. 489. 2938 The navigation of the Ohio in a dry season is rather trou- blesome from Port Pitt to the Mingo town (about 75 miles), but thence to the Mississippi there is always a sufficient depth of water for barges carrying from 100 to 200 tons burden, built in the manner as those are which are used on the river Thames between London and Oxford; — to-wit, from 100 to 120 feet in the keel, 16 to 18 feet in breadth, and four feet in depth, and when loaded, drawing about three feet water. The rapids, in a dry season, are difficult to descend with loaded boats or barges, without a good pilot; it would be ad- visable therefore for the bargemen, in such seasons, rather than run any risk in passing them, to unload part of their cargoes, and reship it when the barges have got through the rapids. It may, however, be proper to observe, that loaded boats in freshets have been easily rowed against the stream up the rapids, and that others, by means only of a large sail, have ascended them. In a dry season, the descent of the rapids in -the distance of a mile, is about 12 or 15 feet; and the passage down would not be difficult, except perhaps for the following reasons : two. miles above them the river is deep, and three quarters of a mile broad ; but the channel is much contracted, and does not exceed 250 yards in breadth (near three-fourths of the bed of the river, on the southeastern side of it, being tilled with a flat limestone rock, so that in a dry season there is seldom more than six or eight inches water) ; it is upon the northern side of the river, and being confined as above mentioned, the descending waters tumble over the ra})ids with a consider- able degree of celerity and force. The channel is of different depths, but nowhere, I think, less than five feet; it is clear. '939 and upon each side of it are large broken rocks, a few inches under the water. (See footnote.) The rapids are nearly in latitude 38° 8'; and the only Indian village (in 1766) on the hanks of the Ohio River between them and Fort Pitt, was on the northwest side, 75 miles below Pittsburg, called the Mingo town: it contained 60 families. 2939 (Footnote.) Colonel Gordon, in his journal down the Ohio, mentions Ghat these falls do not deserve that name, as the stream on the north side has no sudden ])itch, hut only runs rapid over the ledge of a flat rock; several boats,’ he says, ‘passed it in the dryest season of the year, unloading one-third of their freight. They passed on the north side, where the carry- place is three-quarters of a mile long. On the southeast side it is about half that distance, and is reckoned the safest passage for those who are unacquainted with it; but it is tjie most tedious, as during part of the summer and fall the hat- teaux-men drag their boats over the flat rock. The fall is about half a mile rapid water; which, however, is passable, by wading and dragging the boat against the stream, when lowest, and with still greater ease, when the water is raised a little. ’ 2941 Big Kanhaway falls into the Ohio upon its southeastern side, and is so considerable a branch of this river, that it may be mistaken for the Ohio itself by persons ascending it. It is slow for ten miles, to little broken hills; the low land is very rich, and about the same breadth (from the Pipe Hills to the falls) as upon the Ohio. After going ten miles up Kanhaway the land is hilly, and the water a little rapid for 50 or 60 miles further to the falls, yet batteaux or barges may be easily rowed thither. These falls were formerly thought impassa- ble; but late discoveries have proved, that a wagon-road may be made through the mountain which occasions the falls, and that by a portage of a few miles only, a communication may be had between the waters of Great Kanhaway and Ohio, and those of James River in Virginia. The Illinois River furnishes a communication with Lake Michigan, by the Chicago River, and by two portages between the latter and the Illinois River; the longest of which does not exceed four miles. The Illinois country is in general of a superior soil to any other part of North America that I have seen. 2943 Mr. Patrick Kennedy’s journal of an expedition undertaken by himself and several coureurs de hois in the year 1773, from Kaskaskias village in the Illinois country, to the head waters of the Illinois River. ‘July 23, 1773. We set out from Kaskaskias in search of a copper mine, and on the 31st reached the Illinois River; it is 84 miles from Kaskaskias. The same day we entered the 940 Extract, — Imlay^s America. — Continued. Illinois Eiver, which is 18 miles above that of the Missouri. The water was so slow and the sides of the river so full of weeds, that our progress was much interrupted, being obliged to row our boat in the deep water, and strong current. * * * 2944 ‘August 1. About twelve o’clock, we stopped at the Piorias wintering ground. About a quarter of a mile from the river, on the eastern side of it, is a meadow of many miles long, and five or six miles broad. In this meadow are many small lakes, communicating with each other, and by which there are passages for small boats or canoes, and one in particular leads to the Illinois Eiver; the timber in general very tall oaks. We met with some beautiful islands in this part of the river (48 miles from the Mississippi), and great plenty of buf- falo and deer. * * * 2945 ‘August 9. At ten o’clock we passed the Eiviere de I’isle de pluys, or Eainy; Island Eiver; on the southeast side it is 15 yards wide, and navigable nine miles to the rocks. After passing this river, which is 255 miles from the Mississippi, we found the water very shallow, and it was with difficulty that we got forward, though we employed seven oars, and our boat drew only three feet water. The grass which grows in the interval or meadow ground, between the Illinois Eiver and the rocks is finer than any we have seen, and is thicker and higher and more clear from weeds than in any of the meadows about Kaskaskias or Fort Chartres. The timber is generally birch, button and paccan. The wind contiriuing fair, about ten o’clock we passed the Vermillion Eiver, 267 miles from the Mississippi. It is 30 yards wide, but so rocky as not to be navigable. At the distance of a mile further, we arrived at the little rocks, which are 60 miles from the forks, and 270 miles from the Mississippi. The water being very low, we could get no further with our boat, and, therefore, we proceed- ed by land to the forks. We set out about two o’clock on the western side of the river; but the grass and weeds were so high, that we could make but little way. 2946 ‘August 10. We crossed the high land, and at ten o’clock we came to the Fox Eiver (or a branch of it), after walking 24 miles. It falls into the Illinois Eiver, 30 miles beyond the place where we left our boat. Tbe Fox Eiver is 25 yards wide, and has about five feet water ; its course is from the west- ward by many windings through large meadows. At three miles distance, after crossing the river, we fell in with the Illinois Eiver again, and kept along its bank; here we found a path. About six o’clock we arrived, after walking about 12 miles, at an old encampment, 15 miles from tbe fork. The land is stony, and the meadow not so good as some which we formerly passed. From hence we went to an island, where several French traders were encamped; but we could get no intelligence from them about the copper mine which we had 941 set out in search of. At this island we hired one of the French hunters to conduct is in a canoe to our boat. ‘August 11. We set off about three o’clock, and at night got within nine miles of our boat. We computed it to be 45 miles from the island we last departed from, to the place where we left our boat. ‘August 12. We embarked early, and proceeded three miles down the Illinois Eiver. On the northwestern side of this river is a coal mine, that extends for half a mile along the middle of the bank of the river, which is high. On the eastern side, about half a mile from it, and about the same distance below the coal mine are two salt ponds, 100 yards in circum- ference, and several feet in depth; the water is stagnant, and 2947 of a yellowish color; but the French and natives make good salt from it. We tasted the water, and thought it salter than that which the French make salt from, at the Saline near St. Genevieve. At nine o’clock we arrived at our boat. From the island where we found the French traders, and from whence we embarked in a canoe to go to our boat, there is a considerable descent and rapid all the way. Here it is that the French settlers cut their mill stones. The land along the banks of the river is much better than what we met with, when we crossed the country on the 10th of this month. On the high- lands, and particularly those on the southeastern side, there is abundance of red and white cedar, pine trees, &c. We em- barked about two o’clock, and ])roceeded till nine at night. ‘August 13. We lay by half this day, on account of wet weather. ‘August 14. Embarked early, and after crossing the Illb nois Lake arrived late in the evening at the Peoria fort. ‘August 15. Eowed very constantly all day, and arrived at the Mine Eiver in the evening. Here I met with Mr. Jan- iste, a French gentleman, and prevailed on him to accompany me, in an attempt up this river to discover the copper mine.’ 2948 ‘August 16. Embarked early, and ascended the Mine Eiver in a small canoe, about six miles, but could get no further as the river was quite dry a little higher up. It runs the above distance through very high grounds, is rocky and very crooked; the banks of the river are much broken, and the passage choked with timber; Mr. Janiste says, that the cur- rent is so strong in floods, nothing can resist it. The bottom is sand, green in some places, and red in others; it is said that there is an alum hill on this river. As I thought that it was impossible to get to the mine by land at this season of the year, on account of the rocky mountains, weeds, briars, &c. I determined to return to Kaskaskias, and accordingly we went back to our boat, embarked about one o’clock, and continued rowing day and night until 12 o’clock the 18th, 942 when we entered the river Mississippi on our way to Kaskas- kias Village.’ ” 2949 Counsel for complainant also read in evidence passage from Volume 9 of “Early Western Travels by Thwaites,” as follows : “At a period not far distant, a communication between Lake Erie and Illinois Eiver may be opened through the River Pleiu, which empties itself into the lake. Craft are said to have already passed out of the one river into the other. 2950 Flint was particularly interested in the Middle West. Therefore, after a brief sojourn in New York and Philadel- phia, where he commented judiciously on all that made for the higher life of these two young cities, he followed the great Western thoroughfare which crossed Pennsylvania to Pittsburg, then the gateway of trans- Allegheny America. Here he purchased a skitf and floated down the Ohio, occa- sionally landing to make visits and observations; from Ports- mouth he proceeded on a circuit through Ohio and Kentucky, settling at length at the fall of Ohio, in the Indiana town of Jeffersonville. A resident of this place for several months, his investiga- tion of Western conditions assumed a new phase. No longer the passing traveler, noting the novelties and peculiarities of the people, Flint began a systematic observation of American institutions in general, and particularly the political, social and economic life of the Middle West. Looming large on the horizon, Flint discerned the second factor which was to rend American life. The discussion of the Missouri compromise had scarce begun, but already he saw that the nation could not always exist half-slave and half- free. 2951 In addition to his comments on this great social question, Flint throws much light on general conditions in the young West. Throughout the West he finds the saving remnant — people of culture and refinement, who welcome strangers with hospitality, and are laboring to erect a worthy civilization in this newest community. But in all these features of Flint’s work are secondajy to his economic study. Not only did he prove himself a wise and trained observer, but he was a scientific economist, and had come to the United States for research material. At each stage of his travels he sets forth the ratio between prices and wages, explains the industrial aspects, and the prospects for emigrants. Already, he tells us, nearly all the best land of Kentucky and Ohio is taken up. Settlement is flooding In- diana, Illinois and Missouri, where cheap lands are yet avail- able. He shows the sanitary disadvantages of this newer. 943 more reeking soil, as against the possibilities it offers to the emigrant to secure the profits of his own industry. In the present reprint, the original edition, published in Edinburgh, in 1822, has been followed; save that the Adden- da given in the latter (pp. 303-330), have been omitted, as be- ing composed of material of small present importance : 1. Two letters from a Jeffersonville (Indiana) lawyer dated December 20, 1820, and August 1, 1821, commenting satirically upon the wildcat currency of that day. Three other letters, by various persons, giving an account of material progress in Indiana. 2952 3. ‘The American Tariff, with alterations and addi- tions.^ A large portion of Illinois, lying between Illinois River and the Mississippi, is a military grant given to the troops wdio fought in the late war, and divided amongst them at the rate of 160 acres to each man. 2953 The Illinois Military grant was the peninsula between the Mississippi and Illinois Rivers as far north as a line drawn west from the confluence of the Illinois and Vermillion Riv- ers. The value of the land began to appreciate soon after Flint’s journey and ten counties w^ere erected within it in 1824-25. The western part has two great navigable streams, the Wabash and the Illinois. The Wabash is navigable for boats drawing three feet of water, to the distance of about four hun- dred miles from its mouth, and in floods about 200 miles farther. Its largest tributary is White River which is nav- igable to a great distance upward. It waters a fertile and de- lightful country and joins the Wabash below all its rapids ex- cept one runs which forms no great obstruction to the navi- gation. The new seat of government is to be erected on the bank of one of the streams of White River. The Illinois is esteemed one of the best navigations in Western America. So early as 1773, a Mr. Kennedy sailed upward to the dis- tance of 268 miles from its confluence with the Mississippi. With a footnote: Patrick Kennedy was a trader at Kas- kaskia in the Illinois Country during British ascendency. The expedition referred to was undertaken in search of copper mines and extended as far as the mouth of Kankakee River. His journal of this tour is published in Hutchins, A Topo- graphical Description of Virginia. (London, 1778.) The best account I can find of the Illinois is in the journal of a Mr. Patrick Kennedy who undertook an expedition up this river wdth several coureurs de bois in the year 1773 from Kaskaskia Village in search of a copper mine. What follows is principally taken from his journals during the voyage which terminates without the discovery of their object. 2955 Prom the Forks, the Kickapoo River, the princij)al head 944 branch of the Illinois winds to the northwestward, and in about 80 or 90 miles, taking its courses, and passes within four miles of a navigable branch of the Chicago Eiver, which enters at the west side of the head of Lake Michigan close up by the U. States, Fort Chicago. Between these two branches is a portage of four miles making a water com- munication with this trifling exception from the Mississippi to Michigan. Thence down the lake, then by ten miles land carriage around Niagara to the mouth of the St. Lawrence. 2956 Fifteen miles farther up is the Bivier de Lise Depluye, or Eainy Island Eiver, on the southeast side. It is navigable nine miles to the rocks, fifteen yards wide, and 255 miles from the Mississippi. Grass fine, thick and tall. Timber: birch, button and pecan. Eiver : shallow and difficult of ascent. 2957 Eiver: shallow and difficult of ascent. Vermillion Eiver is 12 miles farther up. It is 30 yards wide, rocky and not navigable. A mile above the Vermillion are the little rocks. Here the party took land, and ascended to the Forks, 61 miles above the Vermillion Eiver, and 328 miles from the Mississippi.’^ Counsel for complainant read in evidence the following letter of Father Dublin: 2960 (Quebec, August 1, 1674.) We cannot this year give all the information that might be expected regarding so important a discovery, since sieur Jolliet who was bringing to us the account of it, with a very exact chart of these new countries, lost his papers in the wreck which befel him. This occurred below the sault Saint Louis, near Montreal, after he had safely passed more than forty rapids; he could hardly save his own life, for which he strug- gled in the waters during four hours. However, you will find herein what we have been able to put together after hearing him converse, while waiting for the rela- tion, of which father Marquette is keeping a copy. Two years ago. Monsieur, the count de Frontenac, our governor, and Monsieur Talon, then our intendant, decided it was important to undertake the discovery of the Southern Sea, after having accomplished that of the Northern; and, above all, to ascer- tain in what sea falls the great river, about which the Sav- ages relate so much, and which is 500 leagues from them, be- yond the Outaouacs. For this purpose, they could not have selected a person endowed with better qualities than is sieur Jolliet, who has travelled much in that region, and has acquitted himself in this task with all the ability that could be desired. On arriving in the Outaouac country, he joined father !Mar- quette, who awaited him for that voyage, and who had long premeditated that undertaking for they had frequently agreed upon it together. They set out, accordingly, with five other 945 Frenchmen, about the beginning of June, 1673, to enter coun- tries wherein no European had ever set foot. Their journal stated that — leaving the Bay des Puans, at the latitude of 43 degrees and 40 minutes — at first they voy- aged for nearly 60 leagues upon a small river, very smooth and very pleasant, running in a west southwesterly direction. They found a portage which would enable them, by going half a league, to pass from that river to another, which flowed from the Northwest. Upon that stream they embarked, and after going 40 leagues to the southwest, they found them- selves, on the 15th of June, at 42 and one-half degrees of lati- tude, and successfully entered that famous river called by the Savages Mississippi, — as one might say, ^4he Great Riv- er,’’ because it is in fact the most important of all the rivers in this country. It comes from a great distance northward, ac- cording to the savages. It is a noble stream and is usually a quarter of a league wide. Its width is still greater at the places where it is interrupted by islands — which, however, are very few. Its depth is as much as ten brasses of water ; and it flows very gently, until it receives the discharge of another great river, which comes from the west and northwest of about the 38th degree of latitude. Then, swollen with that volume of water it becomes very rapid; and its current has so much force that, in ascending it, only four or five leagues, a day can be accomplished, by paddling from morning to night. 2961 There are forests on both sides as far as the sea. The most vigorous trees that one sees there are a species of cot- ton trees, of extraordinary girth and height. The savages, therefore, use these trees for making canoes, — all of one piece, fifty feet in length and three in width, in which thirty men with all their baggage can embark. They make them of much more graceful shape than we do ours. They have so great a num- ber of them that in a single village one sees as many as 280 together. The nations are located near the Great River or farther inland. Our travelers counted more than 40 villages, most of which consisted of 60 to 80 cabins. Some villages even con- tained 300 cabins, such as that of the Illinois, which contained over 8,000 souls. All of the savages who compose it seem to have a gentle nature; they are affable and obliging. Our Frenchmen experienced the effects of this civility at the first village that they entered, for there a present was made them — a pipe stem for smoking, about three feet long, adorned with feathers of various kinds. This gift has almost a religio\[s meaning among these peoples; because the calumet is, as it were, a pasport and safeguard to enable one to go in safety everywhere, no one daring to injure in any manner those who bear this caduceus. It has only to be displayed and life is se- cure, even in the thickest of the fight. As there is a peace-pipe. 946 Extract, — Father Dublin. —Continued. so also is there a war-pipe ; these differ however, solely in the color of the feathers that cover them, — red being the token of war, while the other colors are signs of peace. Many things might indeed be said abont this pipe-stem as well as of the manners and customs of these peoples. Until such time as we receive the relation thereof, we shall merely say that the women are very modest; also, that when they do wrong, they cut their noses off. It is they who, with the old men have the care of tilling the soil; and, when the seed is sown, all go to- gether to hunt the wild cattle which supply them with food. From the hides of these, they make their garments, dressing the skin with a cetrain kind of earth, which also serves them as a dye. The soil is so fertile that it yields corn three times a year. It produces, naturally, fruits, which are unknown to us and are excellent. Grapes, plums, apples, mulberries, chestnuts, pome- granates, and many others are gathered everywhere, and al- most at all times, for winter is only known there by the rains. The country is equally divided into prairies and forests and provides tine pastures for great numbers of wild animals with which it abounds. The wild cattle never flee. The Father counted as many as 400 of them in a single herd. Stags, does and deer are almost everywhere. Turkeys strut about, on all sides ; Parroquets fly in flocks of 10 to 12 ; and quail rise on the prairies at every moment. Through the midst of this fine country our travellers passed advancing upon the Great River to the 33d degree of latitude, 2962 and going almost always toward the south. From time to time they met Savages, by whom they were very well received, through favor of their caduceus or calumet stem. Toward the end, they learned from the Savages that they were approach- ing European settlements ; that they were only three days and finally only two days distant from these; that the Europeans were on the left hand ; and that they had to proceed but fifty leagues farther to reach the sea. Then the Father and sieur Jolliet deliberated as to what they should do, — that is, if it were advisable to go on. They felt certain that if thev ad- vanced farth, they would fling themselves into the hands of the Spaniards of Florida and would expose the French who had accompanied them to manifest danger of losing their lives. Moreover they would lose the results of their voyage, and could not give any information regarding it, if they were detained as prisoners — as they probably would be, if they fell into the hands of the Europeans. These reasons made them resolve to retrace their steps after having obtained full information about everything that could be desired on such occasion. They did not return by exactly the same route; at the end of November they reached the bay 947 des Puans, by different routes from the former one, and with’ no other guide than their compasses. While waiting for the journal of that voyage, we may make the following remarks regarding the utility of this discovery. The first is, that it opens up to us a great field for the preach- ing of the Faith, and gives us entrance to very numerous peo- ples, who are very docile, and well disposed to receive it, for they manifested a great desire to obtain the Father as soon as possible, and received with much respect the first words of life which he announced to them. The altogether diverse languages of these tribes do not frighten our missionaries; some of them already know and make themselves under- stood in that of the Ilinois, the first savages who are encoun- tered (upon the river). It is among them that Father Mar- quette will begin to establish the kingdom of Jesus Christ. The second remark concerns the terminus of this discovery. The Father and sieur Jolliet have no doubt that it is toward the gulf of Mexico — that is, Florida. For eastward there can only be Virginia, the sea coast of which is, at most, at 34 degrees of latitude; while they went as low as 33, and still had not come within fifty leagues of the sea, to the west. Like- wise it cannot be the Vermillion sea; because their route which was nearly always toward the south, took them away from that sea. There remains therefore only Florida, which is midway between them both; and it is certainly most probable that the river, which geographers trace, and call Saint Esprit, is the Mississippi, on which our friends navigated. The third remark is that, as it would have been highly de- sirable that the terminus of that discovery should prove to be the Vermillion Sea, — which would have given at the same time access to the sea of Japan and of China, — so, also, we must not despair of succeeding in that other discovery of the western sea, by means of the Mississippi. For, ascending to the north- west by the river which empties into it at the 38th degree, as we have said, perhaps one would reach some lake, which will discharge its waters towards the west. It is this that we seek, and it all the more to be desired, because all these coun- tries abound in lakes and are intersected by rivers, which offer wonderful communications between these countries, as the reader may judge. 2963 The fourth remark concerns a very great and important advantage which perhaps will hardly be believed. It is that we could go with facilitv to Florida in a bark, and by very easy navigation. It would only be necessary to make a canal, by cutting through but half a league of prairie, to pass from tile foot of the lake of the Illinois to the river Saint Louis. Here is the route that would be followed: the bark would be built on Lake Erie, which is near Lake Ontario; it would easily pass from Lake Erie to Lake Huron, whence it would 948 Extract, — Father Dublin. — Continued. enter Lake Illinois. At tlie end of that lake the canal or ex- cavation of which I have spoken would be made, to gain a passage into the river Saint Louis, which falls into the Mis- sissippi. The bark, when there, would easily sail to the gulf of Mexico. Fort Catarokouy, which Monsieur de Frontenac has had built on Lake Ontario would greatly promote that under- taking; for it would facilitate communication between Quebec and Lake Erie from which that fort is not very far distant. And even, were it not for a waterfall separating lake Erie from lake Ontario, a bark built at Catarokouy could go to Florida by the routes that I have just mentioned. The fifth remark refers to the great advantages that would accrue from the etsablishment of new colonies in countries so beautiful and upon lands so fertile. Let us see what the sieur Jolliet says of them, for this is his project: L\t first, when we were told of these treeless lands I imag- ined that it was a country ravaged by fire, where the soil was so poor that it could produce nothing. But we have certainly observed the contrary; and no better soil can be found either for corn, for vines or for any other fruit whatever. ‘The river which we named for Saint Louis, which rises near the lower end of the lake of the Illinois seemed to me to be the most beautiful and most suitable for settlement. The place at which we entered the lake is a harbor, very con- venient for receiving vessels and sheltering them from the wind. The river is wide and deep, abounding in catfish and sturgeon. Game is abundant there; oxen, cows, stags, does, and Turkeys are found there in greater numbers than else- where. For a distance of eighty leagues, I did not pass a quarter of an hour without seeing some. ‘There are prairies, three, six, ten and twenty leagues in length, and three in width, surrounded by forests of the same extent; beyond these, the prairies begin again so that there is as much of one sort of land as of the other. Sometimes we saw the grass very short, and at other times, five or six six feet high; hemp, which grows naturally there, reaches a height of eight feet. ‘A settler would not there spend ten years in cutting down and burning the trees; on the very day of his arrival he would put his plow into the ground. And, if he had no oxen from France, he could use those of this country, or even the animals possessed by the Western Savages, on which they ride, as we do on horses. ‘After sowing grain of all kinds, he might devote himself especially to planting the vine, and grafting fruit trees; to dressing ox-hides wherewith to make shoes ; and with the wool of these oxen he could make cloth, much finer than most of that which we bring from France. Thus he would easily find in the country his food and clothing and nothing would be wanting 949 except salt; but, as he could make provision for it, it would not be very difficult to remedy that inconvenience.’ The above is a brief abstract of matters which are fully re- lated in the journal that was lost. If we can secure the copy of it, we shall observe therein, many things which will please the curious, and satisfy geographers regarding the difficulties that they may encounter in preparing descriptions of that part of north America.” Counsel for complainant read in evidence portions of House Document No. 264, as follows: 2980 ‘‘The least of the two channels estimated for from Lake Michigan to La Salle is eight feet in depth below the lowest recorded stage of water in Lake Michigan and the same depth below the crests of the dams at extreme low water in the Illi- nois and Desplaines Livers. This least depth of eight feet corresponds to a depth of nearly ten feet (9 feet 10 inches) across the Chicago Divide, at the mean level of Lake Michigan and eight feet below the crests of the dams in the river por- tions of the route, no slope being allowed for. In the canals through the line by filling the levels, a depth of nearly ten feet can be carried whenever that depth exists in the rivers. These canals, by simply raising the embankment and lock walls, can be increased to twelve feet depth at small addi- tional expense. 2981 In the Desplaines and Illinois Eivers the practical depths of navigation after the construction of this channel will vary with the stage of the rivers. Beckoning only to the mid- stage, which is about two and a half feet above low water from Joliet to the mouth of the Kankakee and about eight feet above low water thence to La Salle (except at Marseilles, where it is four feet above the crest of the dam), there will be in the river portions of the route from Joliet to La Salle a navigable channel varying in depth from eight feet, when the discharge of the river is a minimum, to from ten to six- teen, feet at midstages.” Page 5: “A complete list of all steamboats of more than fifty tons register, navigating the Mississippi Eiver and its tributaries, giving the dimensions of their hulls, names and tonnage, is herewith. This list is intended to embrace every steam- boat, .so-called, exceeding fifty tons register, that is contained in the last published (for the fiscal year ending June 30, 1888), list of ‘Steam merchant vessels of the United States,’ issued by the United States Government, navigating the Mississippi system of rivers from the Gulf of Mexico to their heads of navigation and includes all steamboats that at that time could have use for the proposed waterway. In this 950 Extract, — House Doc. 264. — Continued. list there are but three with a greater depth of hold thail nine feet. All of these have since been lost or broken up. Whether they have been replaced by smaller boats is not known. 2982 Page 7 : ‘‘The largest Mississippi River steamboat that now reaches* the mouth of the Illinois River in length and draught, is the St. Paul packet, ‘St. Paul,’ which is 300 feet long and 6 feet 2 inches depth of hold. This boat is 70 feet across her paddle- boxes and is a fair type of the largest Mississippi steamboat that will seek this route at extreme low water in the upper Illinois and Desplaines Rivers. Its net tonnage exceeds 800 tons, but -larger boats exist that can use the route at extreme low water.” “A lockage at La Grange Lock is made one in eleven min- utes. At this rate four lockages may possibly be made, pass- ing as many boats, each way per hour. 2983 “The extreme capacity of one of these locks which gov- erns the capacity of the entire route as a means of transpor- tation is, then, on the basis of boats like the St. Paul, 6,000 tons in round numbers, per hour, or 29,000,000 tons in round num- bers, in 200 days, the shortest probable period of navigation, or one-half that amount if boats be moving in one direction only. “The possible capacity of extreme low water of the chan- nel 8 feet deep is thus more than sufficient for all probable demands upon it for many years to come. At higher stages, boats of twice the tonnage of the St. Paul could use the route.” “The route will be navigable at all stages below a stage corresponding to a discharge of from about 30,000 to 35,000 cubic feet per second, or under all ordinary conditions of the river, the extreme floods, occurring at rare intervals, and then ebbing of short duration.” 2984 “A route navigable at all times and in all conditions of the river can be obtained in four days via the valley of the Illinois River: “(1) By canaling past the 22 miles indicated, practically in the bed of the river, with embankment above high water mark. “(2) By raising the dams, or by shortening the length of spillways, until the sectional area of discharge throughout the pools is much greater than the area of discharge over the dams, converting the pools into reservoirs. “(3) By excavating and enlarging the cross sections of the pools until the same result is attained. “ (4) By constructing a lateral canal throughout the line. 2985 “Any of the first three methods vdll involve a greater expense* than would the 4th, or continuous canal from Joliet 951 to LaSalle; the first method, because of the increased cost of the canal, with costly guard locks in connection with costly river improvement over the sections where slack water is re- tained; the second method, by increasing the damages by flowage of valuable lands, and by increasing the height and cost of dams and lock walls, and the difficulty of securing the abutment and connections with the banks; and the third, by enormously increasing the amount and cost of excavation.’’ ‘‘For the section of the river under consideration, locks and dams are necessarily employed, and the nearer the sys- tem approaches slack water, the nearer it approaches the best channel for navigation. As the discharge increases, the velocities of the current increase, and finally when the depth of water over the crests of the dams becomes, as the river rises, such as to allow a free discharge, the currents become difficult, or even prohibitory, to upstream navigation, as 2986 heretofore stated. The bed of the Illinois Elver above La Salle at several points being of such steep slope, and its dis- charge at high water and the variation in its discharge be- tween high and low water so great, 70 to 1, it cannot be re- garded as a very favorable stream for the application of locks and dams. The system fails at high water. Any material increase in the discharge over this section of the river, ex- cept at stages near the low water, or below the midstage, would be, then, not only undesirable, but objectionable, as far as the interests of navigation are concerned. At all times when the natural discharge of the Illinois Elver produces a stage obstructive to navigation over the slack watered reaches, or damaging to property interests, artificially introduced waters should be diminished in cpiantity to the least effective amount, or entirely cut off.” ‘ ‘ Pkacttcability of the Pkoposed Channel, Dischakge of the Illinois Eivek, and Effect of Dams in the Bed of the Illi- nois. 2987 “The propased channel from Lake Michigan to Lake Joliet is nearly entirely artificial; in other words, a canal. This canal, for short distances, enters the bed of the Desplaines Eiver, and is subject to its floods throughout these short stretches. The maximum amount of this flood water to be provided for at long intervals, will probably not exceed 10,- 000 cubic feet per second under present conditions. The aver- age -spring freshets do not probably exceed from 3,000 to 5,000 cubic feet per second. The canal with its waste gates and weir at Lockport; the controllable sluice-gate on the dam at Joliet; the additional sluice-gates in the canal revet- ment below" the dam and above the guard-lock at Joliet (not estimated for), taken in connection with the high retaining- 952 Extract, — House Hoc. 264. — Continued. walls and the allowable depth of overflow over the crest of the Joliet Dam, will safely pass this water. ''This part of the route, or the canal section, as designed, is, then, considered feasible and practicable, with the under- standing that possibly a secure levee may be demanded from the. dam at Joliet, along the left bank of the Desplaines as far as to the flats below the Adams Dam, to prevent overflow when the sluices at Joliet are opened to their full extent. 2988 ' ' The discharge over the dams above the mouth of Kanka- » kee is not, in any case, likely to exceed from 16,000 to 23,000 cubic feet per second. Such discharge is contemplated in the' constructions, and may be passed over the dams. "There is, then, no engineering difficulty, or any appar- ent reason why the constructions proposed, with slight modi- fications that would not materially increase the estimates, will not satisfactorily subserve the purposes of a navigable channel as far as to the mouth of the Kankakee. "Here, however, the conditions radically change. The low water discharge of the Illinois Kiver, which below the mouth of the Kankakee and over the Marseilles Dam does not exceed 1,000 cubic feet per second, including the supply by the Illinois and Michigan Canal, increases at extreme floods, until, as indicated by the high-water marks above the crest of the Marseilles Dam, it reaches 63,000 cubic feet per second at Marseilles. This result is given by "Francis” formula. If the velocity of approach due a slope of 2 feet to the mile, as shown by high water marks for 5 miles above the Marseilles Dam, be considered, the extreme flood discharge over the crest of the dam at Marseilles would probably be estimated at about 70,000 cubic feet per second. "The draining of the Kankakee marshes by a cut through the rock barrier at Momence, Ind., now contemplated will cer- tainly not lessen the ratio of 70 to 1 between flood and low water stage, nor will the constant discharge into the Illinois Kiver of from 300,000 to 600,000 cubic feet per minute, con- templated by the City of Chicago for drainage purposes, les- sen the flood discharge, which determines the practicability of the route for all stages. 2989 "The dams on that portion of the route are proposed to be built as high as the topography of the valley will warrant, without extensive permanent overflow of lands or without materially increasing damage by floods, and the depths re- quired, wdiere not produced l)y these dams in the pools above them, secured by excavation. "These dams have their crests from 10 to 18 feet or more below the high-water plane, and at the extreme flood stage will exercise no appreciable influence over the high-water levels, slopes, and velocities. If the river be not navigable now at flood stage over the reaches named below, it will not 953 be navigable at flood stage after the construction of the pro- posed works, i. e., from Lover’s Leap to foot of Marseilles Canal, 14 miles, for 5 miles above Marseilles Dam, and for 3 miles below the mouth of the Kankakee, where the high- water slopes are excessive; in all, 22 miles out of the 43 miles that intervene between the mouth of the Kankakee and the last dam at Utica. 2990 “The route will be navigable at all stages below a stage corresponding to a discharge of from about 30,000 to 35,000 cubic feet per second, or under all ordinary conditions of the river, the extreme floods occurring at rare intervals, and then being of short duration. 2991 “It must be understood, therefore, that the constructions proposed herein are considered to be adequate to create a navigable water-way in the bed of the Illinois River, below the mouth of the Kankakee, at all ordinary stages of the Illinois River, but that during the short and widely separated floods the route may be found impracticable to use over the reaches named herein. Attention is invited in this connection to the report of Mr. L. L. Wheeler, which contains a short mathematical discussion of this subject. “The Kankakee River brings down large quantities of heavy sediment, which has been deposited in the deeply cut trough above the rock uplift at Marseilles, until that trough of unknown depth has been filled with gravel and sand nearly to the crest of the reef at Marseilles. Under the 14-foot project, and to a less extent the 8 foot project also, the mate- rial must be excavated to get the proper depth. The present condition of the bottom of the river exhibits doubtless, the state of equilibrium that has been established between the scouring action of floods and the capacity of the heavy deposit to maintain its position. The more this condition is dis- turbed, or the deeper the material is excavated and the cur- rent of the river reduced, the greater will be the deposit of heavy sediment in the channel, gradually diminishing until this equilibrium is again restored. 2992 “The Marseilles Dam will be, at high water, in practically the same condition as now, as it is proposed to get the two feet increased height of crest by a movable crest, which will be thrown down at floods. The dam below the mouth of the Kankakee and at Sugar Island will be drowned out, and prac- tically the same condition will exist throughout the reach at high water as at present except in so far as the velocity and slope may be disturbed, however slightly, by this channel ex- cavation. We may expect, therefore, a constant effort of the river to restore at least, its present condition by filling up the excavated channels. “In the 8-foot project the excavation is comparatively light, but in the 14 foot project it is very heavy over this section. 954 Extract, — House Doc. 264 — Continued. and if the channel is not annually tilled with heavy sedi- ment from the Kankakee it will, at least, require constant dredging to maintain it. ''The same remark will apply to other points where there are dee]) excavated cuts in the river-bed, even with little dimi- nution of velocity of current at floods, but the reach below the mouth of the Kankakee, extending to Marseilles, only will probably present much difficulty; other points to a less de- gree, as most of the heavier material is brought in by the Kankakee Eiver, and will lodge in the pools below its mouth and above Marseilles Dam. "The water available for lockage throughout the proposed line being in excess of the requirements of the system, no slope is given to the summit level, or provision made for in- creasing the present discharge of the Illinois Eiver.” 2994 "Chicago Eiver Eoijte. "The route proposed follows the Chicago Eiver from its mouth, via its south branch to near Bridgeport, thence via the West Fork of the South Branch of the Ogden Ditch to Summit, thence iiarallel to the present location of the Illinois and Michigan Canal, on low^er ground, 3 miles, more or less, where it enters the bed of the Desplaines Eiver, which it practically follows, cutting off bends to Sag Bridge where ii unites wdth the second or Sag route. 2995 "The route is preferred to the present location of the Illinois and Michigan Canal, or one adjacent to it. "(I) Because it occupies lower ground, and the probable amount of excavation required is less, since the earth exca- vated from the old canal still remains as spoil banks to be removed. "(2) Because the old canal is paralleled by a railroad on each side, and there is not sufficient room for the enlargement of the canal without condemning the railroad right of way and removing one or both of the tracks. "(3) Because the present canal is the property of the State of Illinois and the conditions of transfer have not been accepted by the United States. These conditions are such that their acceptance would involve greater cost than a new right of wmy. "(4) The Illinois and Michigan Canal is the main sewer of the City of Chicago, as w^ell as a commercial highway, and cannot w'ell be enlarged without either interfering seriously Avith its uses or at increased cost of work from delays due 2996 traffic upon the canal. "(5) As a means of transportation and drainage it is of advantage in the prosecution of the work parallel to it to maintain it in a serviceable condition during the construction of the larger canal. 955 ‘‘(6) For several miles of its course between Willow Springs and Lemont it is excavated in solid rock that the new route avoids so that the old canal location cold not be followed in any event with advantage further than through- out the earth section.’’ 2996 ‘‘Sag oe Calumet Koute. “The proposed route is via Grand Calumet Eiver to 108th street ; thence via a cut-off through Lake Calumet, to its south- western shore ; thence by another cut-off, to the Little Calumet Eiver ; thence to Blue Island, thence nearly due west via, prac- tically, the line of the old Calumet feeder, north of Lane’s' Island, to the junction of the two routes at Sag Bridge.” 2997 Thereupon counsel for complainant offered in evidence two blue prints of the work at Dresden Heights, being portions of the plans produced by Mr. Hey worth. Said plans are marked “G 1527 and G 1553”. The said plans were thereupon offered as “Sheet 1 of plan of dam, May 20th, 1908,” and “Sheet 2 of plan of dam. May 20th, 1908. ’ ’ Said blue prints were received in evidence. (Atlas, pp. 3956 2998 and 3957; Trans., pp. 6582-4; Abst., p. 1928.) Thereupon counsel for complainant offered in evidence “Gauge readings for 1907, Sanitary District,” being the tabula- tion prepared by Mr. Lyman E. Cooley. (Atlas, p. 3903; Trans., p. 6028; Abst., p. 1730.) Counsel foe Complainant. That completes our case, with this exception : Mr. Cooley was asked on the witness stand to assemble the other documents he consulted in making this profile that was introduced, and he said he would; also on cross-examination, Mr. Cooley was asked to furnish such reports that he could produce as referred to the Desplaines Eiver as a navigable river. We have now asked Mr. Cooley to get about that and produce them at the earliest possible moment. We are reserving the right to introduce them when they come. We rest. Thereupon counsel for defendant moved to strike out certain evidence. 3004 Whereupon, after extended argument and colloquy between Court and counsel the Court sustained the motion of the de- fendant to exclude from the evidence the history of Will County and the Directory of Joliet, with Woodruff’s history, overruled 956 the motion to exclude Dana’s History and Drown ’s Peoria, and reserved its ruling on the motion to exclude Heward’s Journal ‘Illinois in 1837,” and ‘‘-The Navigator” and on the other points of the motion. 3005 Whereupon there was read by the defendant the deposh tions to which such motion referred. The CouKT. You will present the depositions to me and mark the places. Whereupon counsel for defendant called attention to the various matters in the deposition to which his motion referred, as follows : The testimony of George W. Eeed as to what his brother told him concerning the wetting of some wheat while same was on a boat in the Desplaines River. The testimony of Francis V. Belz as to what Mr. Lattin told him concerning unloading of boats at the Jackson Street Dam in Joliet and the taking of the boats further down the river and loading them up again. 3006 The testimony of Urias Bowers to the effect that the re- port was that the two boats which he saw on the river came from Chicago and were going to California. The testimony of Eliza P. Jones as to what her father told her in reference to supplies having been brought up the river to Joliet to Lockport, and with reference to salt having been brought down the river. The testimony of Samuel W. Jones as to what Mr. Paddock and Mr. Collins told him with reference to supplies having been brought up the river, and salt having been brought down the river by boat. The testimony of Frank Paddock, as to what his father told him in reference to getting.supplies by boat, some from the South and some from Chicago. The testimony of Williams W. Stevens as to what John S. and Edward H. Jessup and Henry Fish told him as to the use of the river by certain boats. 957 The testimony of Harlow H. Spoor as to the report that a boat loaded with wheat was overturned at or near Treat’s Island. The testimony of Obadiah Hicks as to what he heard from William Found (now living), and also as to what other people told him with reference to the early use of the river by trappers. To testimony of George S. Wightman, as to what his mother told him with reference to a raft of logs going down the river. 3007 The testimony of John W. Taylor that ^‘The river was generally considered by old inhabitants as being a navigable stream.” The testimony of Daniel W. King that old settlers, whose names he could not remember, had told him that the flatboats he saw in Lake Joliet had once been used in carrying provisions. The testimony of George A. Parent that a man told him along in 1854 or 1855 that stone was hauled from the Davidson Quarry to Lake Joliet and shipped on boats. The testimony of Christian T. Heydecker, as to what Lemuel Short and Mrs. J acob Miller told him about coming up the river in boats. The testimony of Edward D. Brockway, as to what his father told liim about taking a flatboat down the river from Joliet to Peoria. The testimony of George B. Eaymond, as to what Shabbona, an Indian chief, told him about high water prior to 1857, and about being around the Seneca in a canoe as a boy, and about white men going up or down the stream. Whereupon the defendant, to maintain the issues upon its part, introduced the following evidence : 3009 Fkancis W. Shepardson, a witness for the defendant, testified as follows: My name is Francis W. Shepardson. I have been engaged as a teacher in the University of Chicago for fifteen years and hold what is called the associate professorship of history. My particular line of study during those years has been American his- tory. I took the ordinary college course, where I was more or 958 She pa rdson ^ — D irect Exa })i . — C on tinned. less interested in history, and then about 1885 I became especially interested in American history through the organization of 3010 a local society at home. I went to Yale and took a postgrad- uate course in American history; worked from there along the usual lines for a little over two years, and received a degree of Doctor of Philosophy on completion of studies in American history. I then came to the University of Chicago at the time of its organization and have been teaching there ever since. My studies included the investigation of the colonial period, all the period of discovery and exploration, and all the early period covering the westward migrations and settlement of the Xorthwest territory. I have spent a good deal of time in studying on that. 3011 I know the general character of the book ‘^Drown’s Peoria,” published in 1850 and have examined it recently 3012 and to what class of material it belongs. Books regarded as authorities by comparisons are classified as follows : The first thing is what we would call original material. That orig- inal matter would consist of such things as treaties, state papers; the letters or papers known to have been written by persons who were contemporaneous with the event described. There would be a class of authorities called secondary which would have a wide range. Some of those would be compilations by men of acknowl- edged repute as historians, who had gathered from the writings of others the facts and had presented them in their own language. There would be the third source of material, which would be used l)y historians for suggestions, for hints, but which we would not accept, from which would not be accepted unsupported statements, where nothing else could be found to sustain them. I would 3014 put Brown’s Peoria in the last class, without hesitation, because in the preface he compares his book to the gift books that were common in the period between 1840 and 1860, and says he cannot print a book that has a nice cover on it, and gilt top, ])ut he does hope this little book, in a simpler fashion will amount to the same thing. Then, too, there is advertising mat- ter in the back of the book, which no historian of repute would allow. Those two things, with the almanac character, would lead me to make that subordinate as an authority. The only thing I no- tice ill the book to show from what source the author drew his statements is from what he says himself. He says, '‘There will he lots of mistakes in it because — ” he says tliat it is entirely free from errors is not expected, but it is believed to be as cor- rect, as, in the nature of things it is possible in the first instance, and he italicizes "unorganized mass of material collected from every quarter, oral and written.” Counsel for Defendant (Reading) : 3018 "Another of our old pioneers and citizens, who is still with us, Mr. John Hamlin, of Mass. He came here in the Spring of 1821 from Springfield, in company with Judge Lockwood, Judge Latham (who afterwmrds became a citizen and proprietor of city lots and died here in 1826, and whom I shall have ocasion hereafter to notice). Major lies, Gen. J. Adams, and a Mr. Winchester. "Major Graham, Indian agent, of St. Louis, came here about that time with a keel boat and proceeded up to La Salle Prairie (Rome) where he paid off the Indians their annuity. Some of them returned and settled here subsequent- ly and became useful citizens in building up our eity. In 1832 an Indian agency was opened and established here by the Government, of which Judge Latham was appointed agent in place of Major Graham of St. Louis, where it had hereto- fore been kept. "John Hamlin, Esq., wms a clerk in and kept a Dranch of the American Eur Company’s store in this place, in one of the buildings in the center view between Water Street and the Lake — the building from the right, just below the Inn sign- post. In this store were kept Indian commodities chiefly. A portion, however, was adapted to the wants of the citizens, wdio, at this time were very few. "Mr. Hamlin, while thus engaged in this store, exported the first produce to Chicago in 1825 in keel boats as far as the mouth of the Kankakee River and from there in Durham boats to Chicago, having built a storehouse at the former place to store in from the keel boats, to be taken by the Durham boats up to Aux Plain River. The principal ar- ticles exported were pork, beans and other provisions for the use of the Fur Company. There were but a very few families till within a few years of this time within the present bounds of the city, till about 1832.” I call your attention particularly to the statement that Mr. Hamlin exported produce to Chicago by way of boats up the Illi- nois River to the mouth of the Kankakee and then up the Des- plaines in Durham boats; and I ask you whether you, as a his- 960 Shepard son, — Di red Exa m. — Continued. torian, or whether a historian, in his study of the subject would give any weight to that statement or value to it as testimony. And if so, how much weight — 6020 A. That would attract my attention in investigating, and I should consider it of some value in an investigation, but if I found nothing to substantiate it and no other instances like it, on account of the character of the book in which it was found, I should (luestion and should not regard it as of importance in my inves- tigation. 6023 I have made an investigation as to the historical docu- ments referring to the early use of the Desplaines River, that is, to the historical material. In the investigation which I made I examined the records of the early French exploration, as de- scribed in Windsor’s narrative and critical history of America,” with such examination of the references he gives in his bibliogra- phy, as I was able to make with the material available; that in- cluded the work of Francis Parkman, an examination of the history of Illinois, Moses’ Illinois, Brees’ Illinois; one or two similar books of that character; and examination of the text of letters written by La Salle, and early French voyagers, and an exam- ination of those appearing in Margry of some collection of such letters. Schoolcraft’s account. I found nothing in my examina- tion on this subject as to the use of the Desplaines River for the transportation of produce. 3030 On a motion to exclude 'Illinois in 1837,” after argument, the court ruled said book out. Counsel fok Complainant. It would take it out of Heydecker’s deposition as well as Alvord’s. The CouET. Yes, although that does purport to be a statement of the iDresent conditions, still I don’t think I would let it go in. (Exception by complainant.) 3035 Upon motion to exclude ‘‘Drake’s Navigator” the court ruled upon argument, that it might be in for what it was worth. 961 3036 Professor Shepardson Kesumed: I never saw or knew of Brown’s Peoria being cited by any his- torian as an authority. I am familiar with the book called ‘‘The Navigator” and have incidentally examined it to some extent. I know how the book stands among historians and I am certain they would put it in the third class, that is, general miscellaneous material. The title of the book, “Directions for Navigating the Ohio and Mississippi Rivers,” indicates the thing for which the book is ostensibly wrib ten. If the author’s statements regarding the Desplaines Elver 3039 appeared in the body of the book, then I should give it much weight. If it appeared in a part of the volume which was not that for which the book was primarily intended, then I should not give it much weight. In every ephemeral book of this char- acter there is found as a rule, besides the thing for which the book is ostensibly written, other matter more or less related. I would accept as of greater weight those things which occur in the part to which the book was primarily designed than for those that were given in an appendix or as correlated matter. I, as a historian, would not give much weight to that statement from this book that has been offered in evidence from that portion of the book. 3040 I am familiar with volume entitled “A description of the bounty lands in the State of Illinois,” published in 1819 by E. Dana and I classify it the same as I would “The Navigator,” valuable for the specific thing which it describes here, the bounty lands. I have examined the last part of the book which gives a de- scription of waterway routes, and classify the matter as matters suggestive and giving a hint to investigators to follow up, but which demand verification. In the description (page 57) of Koute No. 2 by water, it is described “Up Chicago Eiver, Indiana, ten and one-fourth over the portage and up the Plein to the Junction with Theakike, the main head branch of the Illinois,” and opposite the language “Over the Portage, up the Plein to the junction with the Keakeekee” are the figures 15f. I, as a historian, would be struck — I would look, I think, to see when the book was issued, and if I found it was issued after Illinois had been admitted to the Union and then found in the table “Up Chicago Eiver, Indiana,” 962 Sliepardson, — Direct Exam. — Continued. or ‘‘Ind.”, and then wondering about that abbreviation, found it explained over here -as ^‘Indiana’’ I should have ques- 3046 tioned the value of the reference; that is, if I discovered an error of that kind in the table, I should examine the table with more care and if then I should find other discrepancies in the table I should question the value of the book as a refer- ence. 3054 If I was examining a book and found one statement that was manifest to me as an error, and then found another state- ment that was manifest to me as an error, and then in a different part of the book in connection with one statement found another statement that I found on investigation was an error, I would at once have my suspicion of the value of that book as an authority. Q. What weight would you, as a historian, give to the latter part of the book referring to the route, water way route in view of the preface which attempts to deal with the description of the military bounty lands of the State of Illinois. What would 3057 historians generally think of that statement in view of the book itself ! A. My opinion is that they would accept that as an expression of opinion or of description prefacing the real subject matter of the book; but while they would go to that for information upon the bounty lands, they would not go primarily to it for information about any other subject. 3059 I have no way of knowing whether the statements in re- gard to the Desplaines Eiver found in the introductory re- marks of the first part are based upon the author’s personal knowledge or not. 3963 Q. Isn’t it a fact, professor, that at the time that book was published, the distances between that portage and the Kan- kakee river — and from Chicago to the mouth of the Desplaines Eiver, were well known and had been frequently stated by voy- ageurs, and in other historical works that had been published pre- viously to that time! A. Statements had been made long be- fore that. 3065 I am familiar with the works of John Gilmary Shea, called the Discovery and Exploration of the Mississippi Valley, published in 1852. It has a high reputation. I am familiar with the work of Pierre Margry entitled ‘^Let- 963 ters of the Cavelier de La Salle. That is a standard collection of La Sallees letters; works on the early French explorations. Margry gathered those together, I think, in six volumes. (Volume 2 shown to witness.) The character and standing of that work is highly regarded among historians. I can read French but cannot speak it. I can read historical French so that I can un- derstand the drift of the narration. I feel confident I am sufficient- ly familiar with it to be able to translate a passage from La Salle’s letter appearing in this volume. Q. I hand you a paper and ask you whether that is a correct translation of a portion of LaSalle’s letter appearing in this vol- ume of Margry on page 81, being a portion of LaSalle’s letter dated the 29th of September, 1680! A. It is a letter from the dis- coverer to one of his associates covering the experiences between those dates. (1679 — September 29, 1680.) It does not indicate the exact individual to whom it was addressed. This translation is a translation of the part beginning there — on page 81 ‘^and it is necessary for another one at the foot of the lake of Illinois.” Q. Did you make this translation! A. I did not, no, sir. There is a little left out in this, referring to the eastern part of the lake. Lake Frontenac they call that. It is not in there, but it is indicated by asterisks, showing that there has been an omission; but, so far as it relates to this particular part in 3070 issue, this part is correct. The English translation, ‘^The route by the lakes has many great difficulties which Joliet has ignored in part and in part .concealed. ^Mt is necessary to have several more establishments or many more establishments. It is necessary to have one at the foot of the opening by which Lake Erie falls into Lake Ontario, where the navigation of boat is interrupted for three leagues and another where it begins again. At the foot of Lake Ontario to receive that which comes from Fort Fron- tenac. I should say carrying on where one makes a carriage to another establishment where navigation recommences at the entrance of Lake Erie for there to reload the boat. Still, there is another very great difficulty, that is, that the mouth of the lake.” Q. Professor, state whether or not the letters of LaSalle ap- 964 Shepardson, — Direct Exam. — Con tin ued. pearing in this volume by Margry are considered to be, among historians, authentic letters written by LaSalle. A. They are. 3073 I am familiar with the volume entitled, ^‘Travels in the Central Portion of the Mississippi Valley,’’ by Henry School- craft. I think it is counted an authority. I am familiar with Thwaite’s work. I am familiar with Volume 2 of a work by Thwaite entitled, ‘‘A New Discovery of vast country in America,” purporting to- contain the letters and ac- counts written by Father Louis Hennepin; that is one of a series of three reprints under Mr. Thwaite’s editorial direction, of these journals of the French. He published several sets of those 3073 books. The journal of Duluth, for example, in two volumes. Thwaite was simply the editor of Hennepin’s well known work entitled, ”The New Discovery.” Thwaite’s work is us- ually well regarded for accuracy. 3074 I am familiar with the work called ‘‘The Magazine of American History.” (Volume 2 shown to witness.) This magazine was published for quite a number of years under the editorial direction of a woman named Martha J. Lamb, and it comprises contributed articles and then in almost every number there is also a section which was called “original documents,” in which sections were reproduced from time to time these old pa- pers, either out of print or inaccessible, and they were counted a valuable edition to the literature of the history. My presump- tion would be that with that appearing under those auspices the translation would be accurate. It is cited constantly by his- torians. 3079 I am familiar with the volume entitled “Memoir of Justin Butterfield, published by John M. Wilson in 1880. I regard it as valuable. I do'n’t know whether it has any reputation among historians at all. I never saw John M. Wilson. I know who he was; he was the justice of the Illinois Supreme Court. Justin Butterfield was a very prominent early citizen of Chicago. I have been informed that they were contemporaries. The char- acter of the book itself establishes its value. It was a paper read before the Chicago Historical Society, about a prominent citizen of Chicago l)y another prominent citizen of Chicago. The cir- 965 cumstances under which the memoir is j^resented, and the personnel of the two characters, the writer and the one about which it was written, bear upon themselves the stamp of authenticity and cred- ibility. I should put it under the third class mentioned this morn- ing. (Miscellaneous division.) 8084 (^. 1 show you a volume entitled Early Voyages Up and Down the Mississippi,” de Cavalier, St. Cosme, LeSueur. Gravier, and Guiguas, with an introduction, notes and an index 3085 by John Gilmary Shea, and ask you if you are familiar with it? A. Yes, sir; I know those letters. Tt is a standard work. This is what is known as the Shea All)any Collection of Early French Papers, Early AMyages, and is considered as authority and is constantly referred to by historians. I am familiar with AVindsor’s work ‘‘Narrative and Critical History of America.” That is considered I suppose the greatest book of historical work in America. I am familiar with the 3086 chapter entitled “Joliet and Marquette and LaSalle” in Volume 4 of that work. I would include that in 1113 ’ general answer that anything that got place in AVindsor, it is counted of high authorit\x I know of Charlevoix’s letters, published in 1763. I have ex- amined it just hastihx It has an excellent standing among his- torians. It has been published several times; I couldn’t sa\^ how many times. 3087 Q. I show you a volume entitled “Illinois, Historical and Statistical,” b\^ John Moses, Volume 1, published in 1889. Are you familiar with that work? A. I am. It is regarded 3088 favorable among historians. It would be in the second class of the three classes I mentioned. I have alwa^^s considered it trustwortlnx 3091 I am familiar with the writings of Joliet and Marquette. They were early French explorers of this country. Mar- (piette was a priest; Joliet started to be a priest, but preferred to become a wood rover, and vo^mger, rather inclined toward trade and drifted away from the priestly occupation. I am familiar with the letters of LaSalle. I gained all the information I have of him from historical accounts. LaSalle is 966 Shepardson, — Direct Exam, — Continued. what we would call today a promoter. He was desirous of gain- ing possession, getting hold of large possessions in the central part of what is now the United States for the sake of glory of the French king, and he used for his appeal to the French king, which appeal brought him title and influence, and the possibility of estab- lishing a water connection between the Lakes and Mexico. He was exploiting the central west primarily for the glory of the king, and, incidentally, for his own glory. His accounts state he had designs for laying out and establishing trading posts. He Jiad concessions. I am not absolutely sure about the fur trading, but the general concessions he obtained from the King of France, 3091 Q. How do historians generally regard LaSalle’s state- ments in his letters, as compared with those made by Joliet and Marquette? A. LaSalle’s statements are more highly es- teemed in my own mind, because they have been taken by the writers of high reputation like Parkman, as the basis for narra- tives, which historians accept as the best account. I would say that is the reason generally given among historians. I do not mean to imply that greater weight is given to LaSalle. When LaSalle’s statements are compared with statements made by others they are found to be more nearly correct ; that is the general 3094 opinion among historians. The CouKT. Do you know whether historians would give greater weight to one or the other? A. I can state a reason why I think they would. On a matter of that kind and specifically the Desplaines Fiver would be two different things; but if it was on a matter of that kind, if I were allowed to answer that* I should say La Salle. I mean by that that La Salle was out here looking for the best means of communi- cation in connection with his general plan ; and if he said a thing cannot be taken that way and somebody else says it could, then as against the statement of the priest who has one thought in mind, and of the commercial man who had a great thing to ex- ploit, I should say historians generally would take the man whose interests were most involved. 3096 Q. State whether or not there were evidences in La Salle’s letters and accounts that he was more careful and 967 strict, and a more strict observ^er of physical facts, than were either Joliet or Marquette! A. My answer would be based upon a different thing. Joliet’s papers were lost, so that everything written by Joliet was written afterwards, as he thought over things, without the help of his notes, which he himself says he lost when he was almost back to the headquarters; therefore, the notes of La Salle, carefully preserved, would be much more valu- able than the afterthought of a man who wrote without any memorandum to help him. 3098 Q. Is there any other reason why the narratives of La Salle are entitled to greater weight among historians, or have greater weight than those of Joliet and Marquette. A. There is. My answer is that the verification of the facts or things stated by La Salle as a result of later investigation, strengthens the 3099 value of La Salle’s own narratives. That is the general view among historians, and I base that on the standard histories which take La Salle as a basis rather than Joliet or Marquette. Q. Is it true that subsequent investigations have proved the erroneous character of the statements made by Joliet and Mar- quette in their accounts! A. As to Joliet, I should say yes* As to Marquette I do not know. Q. What weight do historians generally give to the ac- 3100 counts written by Father Louis Hennepin! A. The opin- ions vary. First, ^Hennepin’s early writings are highly es- teemed. They have been established through the searching analysis of Parkman who represents, I should say, histories and historians generally on the early French period. The later writ- ings of Hennepin are not so well esteemed, but Parkman himself, rejecting the later writings, accepts the early writings as 3101 the basis for his own statements. The early writings were accepted and the later writing discredited because the state- ment made by Hennepin that he and a companion went to the mouth of the Mississipi Eiver with dates so close together as to make it impossible when the same jorney made by others was de- scribed, for him to have gone to the mouth of the Mississippi and then to have gone back to the point to where he was captured within that given time, and one thing else, because those claims did not appear until several years after he had written an ac- Sliepardson, — Direct Exam. — Continued. count of the trip which did not contain that account of the voyage to the mouth of the river. In his later writings he claimed to be the discoverer of the Mississippi Eiver and his earlier writings contained a narrative of voyage to the Illinois territory. 3103 Q. I ask you whether this particular letter, or account written by Father Hennepin, entitled ''An account of La Salle’s Voyage to the Eiver Mississippi,” directed to Count From tenac. Governor General of New France and appearing on pages 625 to 635 of volume 2, of a work, entitled "Hennepin’s A New Discovery,” is to be classed, or is classed by historians generally among the earlier writings of Hennepin, which are entitled to weight and value as historical evidence! A. It represents ear- lier writings. It is accounted valuable material. Q. What is the standing and character of Flennepin’s accounts so far as they describe physical conditions and topographical conditions encountered by him on his journey! A. Park- 3104 man discusses the fact particularly in his La Salle, and the discovery of the great west, and as I said, historians generally in this country take Parkman for the basis of their knowledge about these facts. Q. Then as I understand you, historians generally accept the the statements of Father Hennepin as to such matters! 3106 A. Yes, sir; the subject is discussed in the index under Hennepin, and refers to it directly, I could not cite the page. It is in Parkman ’s "La Salle and the Discovery of the Great West.” (Witness handed book.) The particular passage I re- fer to is on pages 230 and 231, under the heading "Parts of his book Trustworthy.” 3109 Counsel eok Defendant. I produce volume 2 of the Magazine of American History and I offer in evidence the letter of La Salle, appearins: on pages 552, and the following- pages of that volume, or rather, I otfer portions of the letter which I now read as follows: (Heading) "A little before Christmas, and I found that five of my people, among others, the interpreter, had run away and hid- den themselves in the river, fearing the difficulties which my 9G9 enemies has depicted to them in this voyage. Others were fifty leagues distant on a hunting expedition by order of Sieuer de Tonty, who remained with two men and Father Zenobi. I took ten with me, and four Savages hired for the voyage, but finding my people so scattered, and fearing that I should not be able to regain those who were absent, as in- deed, I could not find the first five, I hired fourteen Savages who belonged to New England, and who had come to this quarter on a hunting expedition to carry to their country the beaver skins of these people. I promised one hundred each, which are worth here, four hundred livres, payable partly in advance. Finding that I could not have enough Frenchmen to be able to separate them, leaving a part in charge of the merchandise and other goods which were there, and taking off the rest, I sent M. de Tonty in advance with all of my people, who, after marching three days along the lake, and reaching the division line called ChicagV), were stopped after a day’s march along the river of the same name, which falls into the Illinois, by the ice which entirely prevented further navigation. This was the 2nd and 3rd of January, 1682. I remained behind to direct. the making of some caches in the earth, of the things I left behind, which were arranged in the following manner.” At this point I omit a description of the caches. ^‘Having finished my caches, I left the 28th of December and went on foot to join the Sieuer de Tonty, which I did on the 7th of January, the snows having detained me some days at the portage of Chicago. There is an isthmus of land at 41 degrees, 50 minutes north latitude, at the west of the Illinois Lake which is reached by a channel formed by the junction of several rivulets or meadow ditches. It is navi- gable for about two leagues, to the edge of the prairie a quarter of a league westward. There is a little lake divided by a causeway made by the beavers, about a league and a half long, from which runs a stream, which after winding about ahalf a league through the rushes empties into the river of Chicago, and thence into that of the Illinois. This lake is filled with heavy summer rains, or spring freshets, and dis- charges also into the channel which leads to the lake of the Illinois, the level of which is 7 feet lower than the prairie on which the lake is. The river of Chicago does the same thing in the spring wdien its channel is full. It empties a part of its waters by this little lake into those of the Illinois, and at this season Joliet says, forms in the summertime a little cbannel for a quarter of a league from this lake, to the basin which leads to that of the Illinois bv which vessels can enter the Chicago . and descend to the sea. 970 Extract, — Magazine A merican Hist. — Continued. This may very well happen in the spring, but not in the summer because there is no water at all in the river as far as Ft. St. Louis, where the IlBnois begins to be navigable at this season, whence it continues deep to the- sea. It is true that there is another difficulty which the proposed ditch would not remedy, which is, that the lake of the Illinois always forms a sand bar at the mouth of the channel which leads to it, and I greatly doubt notwithstanding what is said, that it could be cleared or swept away by the force of the cur- rent of the Chicago since much greater in the same lake has not removed it. Moreover the utility of it would be inconsiderable, because I doubt even if it should be a complete success whether a vessel could resist the great freshets caused by the currents in Chicago in the spring, which are much heavier than these of the Rhone. Moreover it would only he serviceable for a short time, at most for fifteen or twenty days each year, after which there would be no more water. What confirms me in the opinion that the Chicago could not clear the mouth of the channel is that when the lake is full of ice, the most navigable mouths are blocked at this period and when the ice is melted, there is no more water in the Chicago to pre- vent the mouth from filling up with sand. Nor should I have made any mention of this communication if Joliet had not proposed it without regard to its difficulties.’^ I then omit some portions of the letter which describes condi- tions on Lake Erie, and Lake Huron, and proceed: ‘‘The channel between Lake Erie and Lake Huron pre- sents a great difficulty because of its great current which cannot be surmounted except by a strong, stern wind, and because there are places between where there is only a width of four feet of water so that vessels capable of supporting the storms of the lakes could scarcely pass that water be- cause of the height of their situation on the mountains of iNiagara, or the nearness of other mountains by which they are almost wholly surrounded. The autumn and spring storms are so furious, so sudden and so long, particularly furious from the northwest and northeast, and from the southeast in the spring, that sometimes for three or four days, it would he impossible to carry sail or keep clear of land, which is never more than 15 or 16 leagues distant, the lakes being no more than 30 leagues wide, and because if this communication should be insisted upon by means of harks, the lakes could not be navigable before the middle of April, and sometimes even later because of the ice and winter at this season, nor for the rest of the year is the Chicago navigable even for canoes unless after a storm. The waters being always low in the month of March, it 971 would be easier to effect the transportation from Fort St. Louis to the lakes by land by making use of horses, which it is easy to have, there being numbers among the savages called Pana, Pancassa, Manrhout, Gaetea, Panimatra, Panne and Pasos, at some distance, to be sure to the westward, but with which an easy communication may be had either by the river of the Missiouri, which empties into the river Colbert, if it be not the principal branch of it, and is always navi- gable for a distance of more than 400 leagues to the west, or by land. So bare is the country between these people and the river Colbert that it is a wide prairie by which they may be easily brought overland.” I also present the volume entitled Chevalier de LaSalle by Margry, Volume 2, which has been identified by Professor Shep- ardson, and I quote from the translation, and I offer the transla- tion of a portion of a letter of LaSalle, appearing in the original on pages 81 and 82 of that volume, said translation being as fol- lows (reading) : 3116 ‘‘The route by the lakes presents much greater difficulty, which Joliet apparently ignored and partly concealed. Many more establishments (posts) are necessary. One is needed at the foot of the falls where Lake Erie discharges into Lake Ontario, and where the . navigation is interrupted for 13 leagues. ^ ’ I now omit a portion of the letter and then the letter proceeds as follows: “And another one is needed at the foot of the lakes of the Illinois, where navigation stops at a place named Chi- cago, in order to repack the goods brought there in barks and transport them to canoes about 2 leagues away, from there canoes only can navigate to the village of the Illinois, a distance of 40 leagues, notwithstanding Joliet says that there is only a quarter of a league interruption of naviga- tion. Still another establishment is needed on the Illinois where barks can navigate.” I now produce Volume 2 of Thwaites work, entitled, “Henne- pin’s A New Discovery” which Professor Shepardson has testi- fied to as being authentic and I read from a portion of an ac- count written by Father Louis Hennepin, appearing on page 625 and the following pages of that volume. The account is entitled “An account of M. La Salle’s Voyage to the river Mississippi,” directed to Count Frontenac, Governor of New France. I omit 972 Ext ra ct , — // ennepin .—C ontinued . the first portion of the letter and I offer in evidence the follow- ing portion: 3118 ‘‘The creek through which we went from the Lake of the Illinois into the Divine Eiver” — obviously the Desplaines — “is so shallow and so much exposed to storms no ship can venture to get in unless it be in a great calm. Neither is the country between the said creek and the Divine River fit for a canal; for the meadows between them are drowned after any great rain and so a canal will be immediately filled up with sand and besides it is impossible to dig the ground be- cause of the water, that country being nothing but a morass, but supposing it were possibl-e to cut the canal it would be however useless for the Divine River is not navigable for forty leagues altogether; that is, from that place to the vil- lage of the Illinois except for canoes who have hardly enough water in the summer time besides this difficulty there is a fall near the villae'e.” 3122 I now produce a volume entitled Charlevoix’s letters to the Duchess of Las Digneries, published in 1763, printed and sold by R. Baldwin, in Pater Noster row, London, and I offer in evidence a portion of a letter written by Charlevoix on Septem- ber 17, 1721, and found in this volume on page 272, and entitled “Letter 25.” “Madam: I did not expect to take up my pen to write you so soon, but my conductors have just now broke their canoe here and I am detained a whole day in a place where I can find nothing more than can excite the curio sit}^ of a traveller; therefore I can do nothing better than employ my time in entertaining you. I think I informed you in my last that I had the choice of two ways to go to the Illinois” — meaning the Illinois River — “the first was to return to Lake Michigan, coast the south shore and to enter into the little river of Chicago. After going up it five or six leagues they pass into that of the Illinois by means of two portages, the longer of which is but a league and a quarter” meaning there the Desplaines River, he spoke of the Desplaines River as the Illinois River. “But as this river is but a brook in this place I was informed that at that time of the year I should not find water enough for my canoe. Therefore I took the other route which has also its inconveniences and is not near so pleasant but it is the surest. I departed yesterday from the forks of the river St. Joseph and I went up that river about six leagues. I landed on the right and I walked a league and a quarter at first up the bank of the river, then across the country in a vast meadow interspersed all over with little clusters of trees that form a very fine effect. They 97-3 call it the meadow de la tete boeuf (Buffalo’s Head) because they found here a buffalo’s head of a monstrous size. This morning I walked a league further in the meadow having al- most all the way my feet in water. Then I met with a little pool which communicates with several others of different bigness, the largest of which is not one hundred paces in com- pass. These are the sources of a river called Theakiki which our Canadians by corruption call it Kikiki. Thea signifies wolf, I forget in what language, but this river is so called because the Mahagans, which are also called the wolves, formerly took refuge here.” 3124 I now produce a volume entitled ‘‘Early French Voyages up and down the Mississippi, by Cavalier, St. Cosme, La Seuer, Gravier and Guignois, an account hy John D. Shea,” and I refer to the letter of St. Coseme appearing in that volume on page 45 and following pages, which annears to have been writ- ten in 1699 or 1700, and offer in evidence a portion of that letter beginning on page 59 of this volume, as follows: “From Chicago to the Fort they reckon thirty leagues. Here navigation begins, which continues uninterrupted to the port of the Permaveve where the Indians are now. We arrived there on the 19th of November.” 3125 I also offer in evidence from the same volume a ])ortion of the letter of Mr. Thome de la Seuer, which begins on page 79 and described the trip down from Chicago to the Mississippi and back. The portion I read from it is as follows : “We left there on the 27th to return to Tonicas. Mr. de Montigny and la Cosme resolved to go up ahead to bring down the things left at Chicago where Brother Alexander had remained to guard them because there was no water in the river of the Illinois. We brought only canoes loaded with absolute necessaries which we had to carry for a distance of fifteen leagues. We had good cheer this fall returning up the Mississippi.” Then I omit a portion, and I offer the following portion of the same letter, showing his return up to Chicago, page 84: “We arrived on Maundy Thursday at Chicago after mak- ing thirty leagues by land. 7t rained during the last two days of our march. Mr. de Montigny was much fatigued and I was no less so.” 3130 Q. Professor Shepardson, since you were here on Fri- day last, have you made an investigation as to the edition of 1763 of the letters of Charlevoix which I hold in my hand here 974 Shepards on, — Direct Exam. — Continued. and which I now present to you (handing witness book) ? Have you made inquiry as to whether that is an accepted edition among historians'? What do you say now about that edition? A. I have. Well, as I said the other day I did not know that edition and so, following out my custom when I find a thing I do not know in my line I made some investigations Saturday, and I found that 'in Winsor’s Narrative and Critical History of America, Volume 5, there is a bibliographical note on Charle- 3131 voix and Charlevoix’ writings, in which it states that two accepted English translations are made. I can get the ex- act reference, 5 Winsor’s Narrative -"and Critical History of America, page 63, and footnote are tlie references to this book. This is one of the accepted editions. Counsel for Defendant. I call the attention of the court that this is the edition from which I read the other day in quoting extracts from Charlevoix’ letters. 3132 Q. Was La Salle ever in Illinois, Professor? A. He says he was. He gives accounts of travels that apparently would have brought him to Chicago. That account is accepted among historians as an accurate acount of the travels made by La Salle. There is no question among historians as to whether La Salle actually made the trip that he recounts in his letters, the trip from Illinois River to Chicago. La Salle established his forts on the mouth of the St. Joseph River, and one further down, near Starved Rock, on the Illinois. I do not recall that he built any fort at Chicago or any post. Cross-Examination. ’3133 Q. I call vour attention to the statement in 4 Winsor. 177-8: ^^Upon the advice of Intendant Tealon sent and dispatched Louis Joliet to go to the Grand River which the Indians al- leged flowed southward to the sea. Joliet — often spelled Jolliet, with two I’s — horn in Canada, the son of a wagon maker. ’ ’ Would you accept that statement as correct? A. I should take it as correct. It is not definitely known to he a fact that La Salle started to be a Jesuit. 975 3134 I know there is a question about that point, that he had some connection with the Jesuits, but how close it was is not understood or accepted by the standard historians. He had some connection with them and may have had some leaning that way, but that he did positively is not clearly known. 3136 Q. If you find the statement in Parkman that his con- nection with the Jesuits had deprived him under the French law of the inheritance of his father? A. I should accept what is in Parkman as generally true. At the time LaSalle came to America the Jesuits were al- ready in possession of several large missions in x\ew France, and under their concessions they had the control of the trading with the Indians at their missions and the forts in which they were located. That possession of the trade with the Indians proved a barrier to LaSalle’s building up a trade with the Indi- ans, as it afterwards turned out. That was one of the influences that led him to seek his own grants from the crown. Q. If you should find a statement in an authority, reading like this, would you be inclined to accept it, would you regard this as an authority: 3137 ‘‘And thus from 1675 a bitter feeling between LaSalle and the Jesuits threatened to endanger the success of his enter- prise. Evidently a man of settled religious belief in the Catholic faith, he was at the same time advanced in his views of what tends to a people’s development and of the con- trolling power of commerce. He saw little advantage to France or the Indians in missions merely to induce an out- ward worship of the cross by savages. The Jesuits could retain their control over the Indians by excluding traders from among them. They were therefore enemies of any trad- ing around their distant missions which they could not con- trol for the support of their order. The profit derived from, the fur trade under their direction at missions was an im- portant part of their revenue. Thus a monopoly of trade as 3138 well as religion was in their hands and divided Canada into two parties. The ambitious and clear headed Frontenac and LaSalle with the powers of the temporal government and one branch of the church were on one side.” What was that branch of the church upon that side. Professor? A. I suppose it was the Society of Jesus. Q. No, this is Frontenac and LaSalle. Was not that the Eecol- 976 Shepardson, — Direct Exam. — Continued. lect Friars! A. I could not say without verifying my memory on that point. Q. (Reading) : ‘‘And the solid Jesuit power was on the other. With the latter, the Jesuit power, were numerous traders, who flour- ished by their favor at the Mission. LaSalle was considered the head of the opposite party and no means were spared to break his influence and injure his good name. The Jesuits procured an order from the Supreme Council prohibiting traders from going into the country of the Indians to trade, thus giving their Missions the monopoly. LaSalle circum- vented this by inducing* a large settlement of Iroquois around his fort who could range the country for him as hunters and trappers without being considered traders.” 3139 Would you say that was in accord with the general body of authority on that subject! I am reading from Chambers^ Encyclopedia. A. My answer would be that in the main that is a statement that would be accepted. Such a hostility did exist between the Jesuits on the one side and LaSalle on the other. 3140 I don’t know the exact details of the origin of the diffi- culty I know there was a disagreement, and that it had to do with his political plans and his commercial plans. The Jesuits were rivals of his in the business field in which he was embarking. LaSalle came up the stream to Chicago. I could not say the exact year, about 100 years before the Revolutionary AYar, possibly 1679, 1681 or 1682. 3141 I think I said I considered Winsor the best piece of his- torical work that had been done in this country. He may have been contemporaneous in part with Parkman but I should say in the main rather after Parkman than before, and contem- poraneous with Shea. Shea participated with Winsor in the preparation of this narrative and critical history. A great many other noted historians did also. Mr. Shea worked with him a great deal in full co-operation. M^insor and Shea had the benefit of Parkman ’s researches and labors before them at the time 3142 that they wrote. Mr. Parkman, you know, constantly re- vised and re-edited his books so that his last edition came out al)out contemporaneously with AVinsor’s narrative and critical history. 1 would say they worked along together rather than one — each took advantage of the critical judgment of the other. The 977 first edition was written along in I should say, as early as 1857, somewhere there, hut after Margry’s papers were brought into his possession he revised the whole thing and republished it, in the edition used here the other day, after the publication of the first three volumes of Margry’s notes and when he saw the proofs of the other volumes. I cannot say exactly when Winsor’s Nar- rative and Critical History of America was published. It came out one volume at a time but in general I should say twenty-five years ago. The copyright is dated 1884. Winsor and Shea 3143 in 1884 had the benefit of Parkman’s final edition of 1878 at the time they were working. Their work is entitled Narrative and Critical History of America.” If you will examine it you will see that under each subject that is taken up there is a narrative and then following that there is a critical history on the same thing. That term is used because of that combination of the narrative and critical study. Sometimes the whole in- 3144 troduced in most cases by an elaborate editorial introduction by Winsor himself. Q. If you were to find on that an editorial note and a critical essay on that subject apart from that chapter and then were to find a supplement to that chapter entitled ‘‘Joliet, Marquette and LaSalle, the Editor” occupying pages 201 to 246, who would you say wrote that particular portion entitled “Joliet, Marquette and’ LaSalle?” I should say Mr. Winsor. 3145 Q. If you found in Parkman himself the statement that LaSalle did a flagrant injustice to Joliet, you would not venture to dispute that position, would you? A. If I found that in Parkman, I should give it much weight and consider that as Parkman ’s judgment in the matter. Q. I read you from page 106 from LaSalle in the Great West by Parkman: “He is also said to have declared that Louis Joliet was an imposter and a Donne of the Jesuits, that is, a man who worked for them without pay. This agrees with expressions used by LaSalle in a Memoir addressed by him to Prontenac in November, 1680, in which he intimates his belief that Joliet went but little below the mouth of Illinois, thus doing a fla- grant injustice to that brave explorer.” 978 Shepardson, — Direct Exam, — Continued. 3146 I slionld not pass judgment on a statement like that of a detached sentence out of a chapter which may cover a large number of things without first an examination, but if after exam- ining it, I found that statement there clearly by Parkman as edi- torial comment, I should accept it as probably correct and has having the weight of his authority behind it. I should say Joliet was a man of considerable experience prior to the time when he made his descent of the Mississippi and his ascent of the Illinois with Marquette and gave his reports to Prontenac of that trip. As I recall, he had been sent on a mission up to the northwest country as an explorer. Q. I call your attention to this statement from Mnnsor, page 178: 3147 Three years before his appointment to explore the great river beyond the lakes, he had been sent with Pere to search for copper mines on Lake Superior and the year before he had stood by the side of St. Lusson as he planted the arms of France at Sault Ste. Marie.” AYould yon accept that statement as correct! A. Yes, sir. Q. Eeferring to this account of his trip up the Desplaines, I will call your attention to this statement from "\Yinsor on the same page : ‘‘Upon the west bank of one of its tributaries, the Desplaines Eiver, there stands above the prairie a remarkable elevation of clay, sand and gravel, a lasting monument which has with- stood the erosion of a former geological age.” Yon would not call Justin AYinsor a geologist, would you! A. I am not sure but what he would be entitled to that rank. He was one of the most distinguished geographers we had in this country. The relation between geography and geology is 3148 so close that in Winsor’s case I should call him a geologist, though not a professional geologist. (Eeading from page 178.) “It was a landmark of the Indians in their hunting and the French voyageurs on their trading expeditions. By this Joliet was impressed, and he gave the elevation his own name. Mount Joliet, which it has retained while all the others he marked on his map have been forgotten. It was not until about the middle of August, 1674, that he returned to Quebec, 979 and Governor Frontenae, on the 14tli of November writes to the French Government : ‘Sieur Joliet, whom Monsieur Talon advise me, on my ar- rival from France, to despatch for the discovery of the South Sea, returned three months ago, and found some very fine countries, and a navigation so easy through the beautiful rivers, that a person can go from Lake Ontario and Fort Fron- tenac in a bark to the Gulf of Mexico, there being only one carrying place, half a league in length, where Lake Ontario communicates with Lake Erie. A settlement could be made 8349 at this post, and another bark built on Lake Erie. He has been within ten days’ journey of the Gulf of Mexico, and be- lieves that water communication could be found leading to the Vermillion and California seas, by means of the river that flows from the west, with the Grand River that he dis- covered, which rises from north to south, and is as large as the St. Lawrence opposite Quebec. M send you by my secretary the map he has made of it and the observations he has been able to recollect, as he lost all of his minutes and journals in a wreck he sutfered within sight of Montreal, where, after having completed a voyage of 1200 leagues he was near being drowned and lost all of his papers' and a little Indian whom he brought from those countries.’ ” A. That loss was the loss I referred to in my direct testi- mony. 8150 Q. In the matter of his reporting to Frontenae and Fron- tenac reporting to the French Government, you consider this statement by Winsor a correct statement? A. Yes, sir. 8151 I simply stated that Frontenae ’s letters said so, and I accepted it because it was in Winsor. The Court. You mean that you accepted the version given by Frontenae to the French Government as a correct narrative of what actually happened because Winsor has reported in his book That Frontenae did make this statement to the French Govern- ment! 8152 A. No, sir; I did not. I understood that counsel asked me whether the report of Joliet to Frontenae and Frontenae ’s ]-eport to the French Government was the method of conveying that as indicated by Winsor, but I did not mean to state that Win- sor’s reprinting of the report from Frontenae could lead me to think that the statements in that report were absolutely cor- rect. 980 Shepardson, — Direct Exam. — Continued. 3153 Counsel for Complainant. I direct your attention to the statement on page 173 and 4 Winsor: “During the summer of 1669, the active and intelligent Louis Joliet, with an outfit of 400 livres and one Pere, perhaps the same person who gave his name to a river leading from Lake Nepegon to Hudson Bay, with an outfit of 1000 livres, went to search for a copper mine on Lake Superior and to discover a more direct route from the Upper Lakes to Mon- treal. Joliet went as far as Sault ste Marie where he did not long remain, hut in place of a mine found an Iroquois prisoner among the Ottawas at this point and obtained per- mission to take him back to Canada. In connection with an- other Frenchman, he was led by the Iroquois from Lake Erie to the valley of the Grand Elver to Lake Ontario and on the 24th of September at the Iroquois village between this river and the head of Burlington Bay, he met LaSalle with four canoes and fifteen men, and the Sulpitian priest Galline and de Corson, who on the 6th of July had left the post at LaChine. LaSalle, alleging ill health, at this point separated from the missionaries and Joliet, before proceeding towards Montreal drew a chart of the Upper Lakes for the guidance of the Sul- pitians.” Having your attention called to that statement, would you now accept that as correct! A. It would depend on how it ap- 3153 peared. If it was an editorial letter of Mr. Winsor, I would give it weight. If it said, “I give this as an extract from some story which has more or less value,” then I should be guided by Winsor and not by the source of the information. I could not tell about an isolated extract like that without knowing who wrote it and the weight which Mr. Winsor gives it, because he often quotes things which he does not fully sustain in order to give the different opinions regarding events. 3154 Q. What I have read to you, the description in Chapter 5 of Volume 4, that chapter was written by the Eev. Edward D. Neill, corresponding member of the Massachusetts Historical Society and honorary vice-president of the New England Historic and Geneological Society. Do you know the Eev. Edward D. Neill! A. No, sir; I never heard of him. I know that Winsor had selected him to write this chapter. I consider it worthy of credibility. 3156 Q. Do you know when it was with reference to his work that he received concessions! A. Well, of course it was 981 before 1682. Not before he began his work but after he had under- taken certain things, he went back to France and there secured these concessions from the King. He asked these conces- 3157 sions as a field in which to work the same as any other pro- moter of the day. I am not sure that Joliet received important concessions. Q. Well, suppose that you find the statement in the authority like this : ‘‘Louis Joliet, 1645-1700; born Quebec. Educated at the Jesuit college for the priesthood, but abandoned the design, and going west, engaged in the fur trade. In 1672 he was ap- pointed by the French Governor of Canada to explore the Mis- sissippi. He and Here Marquette started from Michilli Mack- inas. May 17, 1673, proceeded to Green Bay; ascended the Fox Eiver; obtained Indian guides to the west; entered the Mis- sissippi June 17, 1673, and passing down reached Arkansas. Satisfied that the river flowed into the Gulf of Mexico, not into the Pacific Ocean, they returned to Lake Michigan by way of the Illinois River, Joliet proceeding alone to Quebec. His canoe upset in the Lachine rapids and he lost his maps and manuscript. From memory he prepared a map and report of the expedition. He was appointed Royal Hydrographer at Quebec. In 1680 he received the grant of the Siegneury of An- ti-Costi Island to the development of whose fisheries and trade he devoted himself. In 1693 he obtained the Siegneury of Joliet which still belongs to his family.^’ 3158 I read from Chambers’ Encyclopedia — do you accept that? A. No, not exactly as it is written because it covers one great point of dispute as to where Joliet did go when he went down below the junction of the Ohio and the Mississippi. 3150 There has been quite a lot of uncertainty as to where Joliet went. Personally I have never followed the history of Joliet outside of his relationship with the Mississippi Valley, and so what grants have come to him later in life as the reward for his services, I do not know. I could not tell from my own knowledge why any grant was made to Joliet. That is a part of this historical field that I have explored. I know that the corruption in the old regime in Canada was such that nobody could ever tell why a per- son got rewards. I could not say for example, that he got a reward for distinguished services or that he got it for a political pull. 3161 Q. Were not the concessions made to La Salle with a view to the promotion of the things conceded while the 982 Sliepardson, — Direct Exam. — Continued. grants made to La Salle were made after the services had been rendered! A. I should say the dates would prove that. As to La Salle the statement would he correct. Q. I want to direct your attention now to a statement by Mr. Winsor himself, referring to the events that were happening during Frontenac’s administration in Canada, page 222: 3162 ^^The Governor, Frontenac was needy in purse, expedient in devices and on terms of confidence with a man destined to gain a name in this western discovery. This was La Salle. Parkman pictures him with having a certain robust ambi- tion to conquer the great valley for France and himself and to outdo the Jesuits.^’ Do you accept that as a fair summary of Parkman ’s characteri- zation! A. I think so. Q. ‘‘Shea sees in him little of the hero and few traces of 3163 a powerful purpose.’’ Is that a fair summary of Shea’s opin ion of La Salle! A. I think so. Q. Shea in his LeClerq. Volume 2, page 199, says: “LaSalle has been exalted into a hero on the very slightest foundation of personal quality or great deeds accomplished.” Do you recognize that as a fair statement of Shea’s position! A. Such a question as that ought to be accompanied by a knowledge of Shea’s point of view. I think so. Q. You have understood that there has been a great difference of opinion on this subject, have you not, or did you know that until you were employed to look this subject up for this case! A. I know there is a great fundamental ditference in all histories of France and America based on a certain thing which is patent and therefore those opinions differ widely according to which side the writer is on. 3165 Q. You spoke of La Salle as having done some other work first. La Salle first got a place at the LaChine Eapids, did he not! A. His followers named it that and joked over his hopes. I could not say whether the building of the Griffin was the next thing he did or not. He did build it. Tonty, I think, carried on the work at the direction and suggestion of La Salle. That was just above Niagara. 983 3170 Q. You said, Mr. Shepardson, that you would attach greater weight to statements made by LaSalle than you would to statements made by Joliet because Joliet had lost his papers. It is true that LaSalle’s papers were lost, is it not! A. Some of them may have been. Margry managed to find a great many of them. 3171 Q. Is it not true that a number of the papers that are attributed to LaSalle are not signed by anybody! A. Yes. Some of them are put in the third person. It would depend on the habit of that particular writer in making his reports whether papers that are in the third class and not signed should be called anon^mious. Membre, I don’t j^lace him exactly. He was one of those who figured at this time as a voyageur and explorer. Membre ’s jour- nal is highly esteemed. LaSalle himself experienced a great many losses both by wreck and desertion ; he had the ordinary experience of 3177 travelers at that time. My opinion of LaSalle’s writings was made by general observation of views of different writ- ers upon him, taking those views which I thought to be most worthy of acceptance and making those views mine. Q. Keferring to your estimate of LaSalle, I direct your at- tention to the statement in 4 Winsor on page 234 and 235, La- Salle’s distrust and vacillation and Beaujeau’s jealousy and as- sumption boded not good, and a dozen warm quarrels between them were patched up before they got to the sea. There is not a little in all this to point to a state of mental unsoundness in La- Salle.” 3178 Had you this statement of Winsor as to LaSalle’s men- tal condition in mind when you gave your judgment. A. I had not at that particular instant, no, sir. I had observed that description, it had not escaped my mind. My judgment, as I just said, was made on my general observation and reading on that subject. It was not in my mind the moment the ques- tion was asked me. I should think LaSalle was of an imperious disposition. I would say he had his quarrels with other leaders, but that he was 984 Shepard son, — Direct Exam.— Continued. embroiled throughout his course, I should say no. The scheme for promotion which LaSalle had formed and in pursuance of which he made the great journey to which you referred, failed, so far as LaSalle was concerned. He was killed. 3180 Q. I direct your attention to the passage in 4 Winsor, page 236 : ^^The Jolly next disappeared in a fog and LaSalle waited for her four or five days, but in vain, so he sailed on further until he found the coast trending southerly, when he turned and shortly after met the Jolly. Passages of crimination and recrimination between the leaders, of course, followed. LaSalle all the while was trying to make out that the numer- ous lagoons along the coast were somehow connected with the mouths of the Mississippi, while Beaujeau, vexed at the con- fusion and indecision of LaSalle’s mind, did little to make matters clear. They were in reality at Mata Gorda Bay.” I will ask you whether that is not the fact? A. I don’t know whether it is a fact or not. I take what is in the book, written by Winsor, for what it is worth, knowing how little anybody knew of geography at that time. I do not consider this statement as to the confusion and in- decision of LaSalle’s mind in the judgment expressed as to the value of LaSalle’s opinion. 3181 Q. Eeferring to the opinion which you expressed con- cerning Charlevoix, directing your attention to. the state- ment in the critical essay on the sources of information on page 358, the statement concerning Charlevoix, ‘^Parkman, whose studies have made him a close observer of Charlevoix’ methods, speaks of his usual carelessness.” Was that in your mind at the time you gave your opinion on Charlevoix? A. Yes, I know the passage you have cited: if you will read the rest of it you will find other joeople say other things. I would disagree with' Parkman in that particular. There I agree with Bancroft, and a majority of historians. On all those things you have to make a consensus of judgment. 3183 I do not know that Hennepin made the statement in his earlier book of 1683 that the Niagara Palls were five hun- dred feet high; if he did I would examine and give it such weight as one would to the first observation of a mighty cataract. I 985 think he belonged to the Eecollet Branch of Jesuits. I think lie was one of the Recollet Friars whom Frontenac had attached to himself to play otf against the Jesuits. If Hennepin in his book of 1683 called the Falls 500 feet high, that would not alone af- fect my judgment as to the value of Hennepin ^s statement of facts. The statement in Winsor that ^‘Hennepin in his 1683 book called them 500 feet and in 1697, 600 feet high, and describes a side shoot on their western verge which does not now exist” would not affect me materially in my judgment. I could tell you many historical papers which give things that do not exist, which have been accepted for 3 ^ears. 3184 Q. If you also found the following statement in AVinsor, ^^4ccording to Hennepin’s own story some time after his first book was published he incurred the displeasure of the Pro- vencal of his order by refusing to return to America and was in more ways than one so pursued by his Superior that in the end he threw himself upon the favor of AVilliam Third of England, whom he had met at the Hague. Hennepin searched Amsterdam for a publisher of his new venture but had to take it to Utrecht, where it came out in 1697 with a fullsome dedication to the English King.” AVould that statement affect your judgment of his opinion and statement of facts! iV. One’s opinion of such things must take into account all of those things. Of course that is a familiar episode in Hennepin’s life. 3885 Q. If you found a statement that the first may he made of his explorations did not trace the Mississippi to a con- nection with the Gulf of Mexico, but did represent a dotted line of connection, while his second map, in 1697, represented the river as going clear to the Gulf of Mexico, and then a statement in A¥in- sor: ‘‘This change is made to illustrate an interpolation in the text borrowed from Father Membre’s Journal of LaSalle’s descent of the river,” if you had that before you, would that affect your judgment of Hennepin! A. That would simply bring my atten- tion to another well known fact. Many of the criticisms on Hen- nepin have been supposed to have been false because books have been published called Hennepin’s which he did not himself write. There were compilations by other writers with his name attached. 986 Shepard son, — Direct Exam. — Continued. That would not affect my judgment of the value of his New Discovery. 3186 Q. I direct your attention to the passage on the same page: ''Mr. J. H. Perkins reviewing Spark’s Book (of the life of LaSalle) makes for the first time, as he thinks, a thorough critical statement of the grounds 'for thinking the Reverend Father (meaning Hennepin) so great a liar.’ ” Would that ef- fect your judgment! A. In making my judgment of Hennepin I should take later and more critical studies than that one men- tioned there. We have one that would be more critical than anything else. Q. Take Winsor’s next statement a little further down: "The Membre narrative is much the same as — That there was a fraud on Hennepin’s part has been generally held ever since Sparks made his representations. Bancroft calls Hennepin’s Journal 'a lie.’ Broadhead calls it an audacious falsehood. Park- man deems it a fabrication and has critically examined Henne- pin’s inconsistencies. Gravier classes his narrative with Gulli- ver’s;” would that affect your judgment! A. No, sir; because it is not a fair statement. Parkman does not state that alone. He states that in some parts of it it is a mendacious narrative but in other parts, particularly certain things which he enumerates, Hennepin’s Narrative may be reliable. Furthermore, since that book has been printed, many of Spark’s conclusions have been thoroughly discredited and therefore that quotation would not af- fect me any. 3187 There has been a vast improvement in historical investi- gations in the last twenty-five years. 3188 Q. I direct your attention to the following statement in 4 Winsor, page 250: "The publication of anonymous account of LaSalle’s whole expedition in Margry’s Decouverts et Establissements des Francais has enable Dr. Shea, in his edition of Hennepin, to contest Margry’s views of Hennepin’s plagiarism and to compare the two narratives critically; and he comes to the conclusion that probably Henne])in was LaSalle’s scribe be- fore they parted, and that be certainly contributed, directly or indirectly, to LaSalle’s dispatches what pertains to Hen- nepin’s subse(pient ^independent explorations, thus making the l)orrowing to be on the ])art of the anonymous writer, 987 who, if he were LaSalle, did certainly no more than was becoming the master of the expedition to combine the narra- tives of his subordinates.” 3189 With that before you, would you still say that it was wrong to describe the account published in Margry as anon- ymous? A. No, sir; I certainly did not mean to give any such sweeping characterization to Margry ’s notes. The question as I remember it was, was some of LaSalle’s writings or reputed writings of LaSalle anonymous, and I said yes, but I didn’t char- acterize Margry ’s whole text. I should say now as to the account published in Margry ’s of La- Salle’s journey that it was not anonymous, taken as a whole, making reservation as I did this morning. It is a matter of dispute. Whether or not Hennepin was LaSalle’s scribe and 3190 whether or not the account as credited to LaSalle was in LaSalle’s hand, or whether LaSalle wrote it. LaSalle was master of the expedition and heard of it, and if he hired some- body to do it for him, that would be called LaSalle’s, just as in modern times, if a person dictated a thing and a man wrote it out in type, he would not be given credit for it. To take the position that you couldn’t tell what LaSalle wrote and what 3191 Hennepin wrote, then it might be possible to weaken all of LaSalle’s statements. I can’t tell because it has never been decided yet, it is one of the great points in controversy. Q. I continue the extract from Winsor: ‘Ht is Shea’s opinion, however, that the Margry documents was not written by LaSalle but by some compiler in Paris, who used Hennepin’s printed book rather than his notes or manuscript reports. Margry claimed that this Eelation was compiled by Bernou for presentation to Colbert. Parkman thinks, as opposed to Shea’s view, that Hennepin knew of the document and incorporated many passages from it into his book.” Now, Professor, do you still say that account was not an anonymous account! A. Yes, sir; I take the position that the matter is still in controversy and unsettled. 3192 By anonymous I mean that a document would be anony- mous without any parent at all, in the question of contro- versy; not a known parent. The question in controversy is is 988 Shepardson, — Direct Exam. — Continued. this account in LaSalle’s own writing or is it perhaps the writing of his secretary. The controversy extends also as to whose con- ception of language it was, whose words they actually were, whether LaSalle wrote it himself or whether Hennepin wrote 3193 it out himself or whether the secretary did it for him, The controversy is which of these two wrote it. I say it is not anonymous because one of the two is the author of it. Q. What do you say. Professor, as to the statement of Margry himself which I have just read. Margry claims that this of- ficial enterprise of LaSalle 1678-1681, was compiled by Bernou for presentation to Colbert? A. Well, that may be another position taken by Margry in regard to that. Margry is the man who discovered the document. Parkman had access to the original documents along with Margry. 3194 Q. (Beading) ‘‘Parkman thinks, as opposed to Shea’s views, that Henepin knew of the document and incorporated many passages from it into his book (LaSalle, pages 150-262). Dr. Shea started with the defactors of Hennepin in his earlier Discovery of the Mississippi, but in his later book he makes fair amends for what he now considers his hasty conclusion then.” Deferring to Spark’s Life of LaSalle, and the North American Eeview, 1845. ‘^‘ Parkman ’s conclusion is that this early book of Hennepin is ‘comparatively truthful.’ That final statement is the one upon which you stand. A. Yes, sir. My opinion in regard to that was based upon considering three texts, I think Winsor’s, Parkman ’s and Thwaites’, as to the value of Hennepin’s writ- ing. 3195 Q. Deferring to the loss of manuscript which you said weakens the value of Joliet, I direct your attention to the statement of Parkman, on page 21, speaking under the date of 1669-1670 : “We return now to LaSalle, only to find ourselves in- volved in mist and obscurity. What did he do after he left the two priests? Unfortunately, a definite answer is not pos- sible, and the next two years of his life remain in some mea- sure an enigma. That he was busied in active exploration, and that he made important discoveries is certain; but the extent and character of these discoveries remain wrapped in doubt. He is known to have kept journals and made maps; 989 and these were in existence and in possession of his niece, Madeline Cavelier, then in advanced age, as late as the year 1756; beyond which time the most diligent inquiry has failed to trace them.’’ Kef erring now to LaSalle’s exploration of the Desplaines and Illinois, that you have referred to as having been made in 1671, which is in the two particular years which Parkman says remain an enigma and to the journal and map which he kept of those years, which Parkman says — ^‘beyond which time (1756) the most diligent inquiry has failed to trace them” — I will ask you to state whether or not we have with reference to the trip of LaSalle that* authentic and immediate data and journal made at the time the trip was going, which you said were lost in the case of LaSalle! 3196 Omitting then the statement that you said LaSalle had explored the Illinois in 1671, what do you say as to the ef- feet upon your comparison with Joliet! A. Parkman makes 3197 no reference to the two years following, 1669-1670. He says expressedly, it is 1669-1670. 1671 he is back again in his reg- ular narrative. The date at the top of page 20 is 1670. Describing the move- ments here on pgige 18, occurs the statement: ‘‘On the last day of September, the priests made an altar supported by the paddles of the canoes laid on forked sticks. Bollier said mass; LaSalle and his followers received the sacrament, as did also those of his late colleagues, and then they parted, the Sulpitians and their party descending the Grand River towards Lake Erie, while LaSalle, as they sup- posed, began his return to Montreal.” On page 19 : “This is the first recorded passage of white men through the Straits of Detroit; though Joliet, had, no doubt, marked this way on his return from the Upper Lakes. The two mis- sionaries took this course, with the intention of proceeding to the Sault Ste Marie, and there joining the Ottawas, and other tribes of that region, in their yearly descent to Mon- treal. (Omitting a passage.) They passed the Manatoulins, and ascending the strait by which Lake Superior discharges its waters, arrived on the 25th of May at Ste. Marie du Saut.” That is on the date, the 25th of May, 1670. That is the last given date until the next page*. 990 Sliepcu'dson, — Direct Exam. — Continued. >3198 ‘‘Ascending French Eiver to Lake Nipissing, they crossed to the waters of the Ottawa, and descended to Montreal, which they reached on the 18th of June. They had made no discoveries and no converts ; hut Galinee, after his arrival, made the earliest map of the Upper Lakes known to exist. We returned now to LaSalle, only to find ourselves involved in mist and obscurity. AYliat did he do after he left the two priests? Unfortunately, a definite answer is not possible, and the next two years of his life remain in some measure an enigma.” Eeferring to those next two years and to the loss of his jour- nals and maps reported in the same paragraph, what would you say of the effect of the loss of those journals and maps on La- Salle’s subsequent account? A. There is no evidence where LaSalle was in those two years. Therefore I can’t see how the loss of papers in those two years would affect his account of what took place in the years afterward. 3201 Q. Suppose that what we know about that earlier joeriod should come from a document which was written in Paris, by a man who never saw America, who had some ten or twelve interviews with LaSalle and subsequent to those inter- views to have recorded them in the form of a historical narra- tive concerning LaSalle’s work prior to 1678; would you say that such narrative was entitled to higher credit than the re- ]iort which Prontenac made to the French Government as to the explorations made by Joliet? A. Well, my own view is that that would not be entitled to as much credence as an official pub- lication would have. I should think Frontenac’s report of Joliet’s trip would be entitled to greater weight than that ^lemoir of that gentleman of France, who purported to tell what was told him. 3205 Now referring to LaSalle’s judgment, I direct your at- tention to the passage in Parkman, on pages 339-341, dated 1684: “Beaujeau says that this affair” — this friction over the command of the ship ‘Jolly’ — “made a great noise among the officers at Eochefort, and adds: ‘There are very few peo- ple who do not think his brain is touched. I have spoken to some who have known him for twenty years. They all sav that he was always rather visionary.” 991 Would tliat modify your judgment as to LaSalle? A. No, sir, not in the least. My opinion on LaSalle is formed by considering all these things. 3208 It would not affect my judgment of the narrative of La- Salle, when it comes in comparison with Joliet or Marcjuette. Q. Professor, prior to your coming upon the stand, with what historians have you talked about the weight and standing to be attached to Hennepin’s New Discovery? A. Professor Smith of Yale, Professor Adams of Yale, Professor All)ert Bushnell Hart, and others in a casual way, in the course of my studies. I 3209 have talked with my professor. We worked over that period together. That was one of the points of discussion. But a man would not found his judgment of that thing by talking with other people. He would do it by looking up authorities. The value of a book is not alone determined by its inherent qualities, it is in part. The judgment I have given to-day is made up partly in regard to the illustration of that style of book. I didn’t recognize it Friday. I looked it up and found the information regarding the book, found it bore the title 3211 page of the book. Therefore my judgment was that that was the book, which is credibly received by historians as of value. The character of the book itself establishes its value. Q. In your answers to-day you have spoken of agreeing with certain historians on some points and disagreeing with them on others. That is, you have weighed the historical evidences on the different questions presented and you find no historians to whom you would adhere on all those points, is that right? 3212 A. Yes, sir. I have tried to make my independent judg- ment by weighing all the authorities as far as they have come to my knowledge and been the subject of investigation. I have tried to give my particular judgment arrived at in that way in each instance. 3213 Re-direct Examincition. The book edited by Margry covers the travels made by La- Salle between the years 1679 and 1683. I understand there is no obscurity as to the results of the movements of LaSalle 3214 from 1679-82. Keferring to the volume of Parkman’s works from which was read a quotation relating to the mental 992 Shepardson,— Re-direct Exam. — Continued. condition of LaSalle at a certain period of his life, my own judg- ment is that it referred to the period just immediately preced- ing the altercation referred to. Eeferring to LaSalle’s mental condition prior to that journey that he undertook in 1684, there were such statements as were referred to this morning, about having the quarrels now and then, and things of that kind, hut I remember no charge in that earl}^ period that he was out of his head or anything like that, as charged in that point there. 3215 The authority I mentioned this morning to the effect that Hennepin’s narratives were reliable is pages 230 and 231 of Parkman’s works, entitled ‘‘LaSalle and the Discovery of the Great West.” The witness then read the following passage: “Such being the case, what faith can we put in the rest of Hennepin’s story! Fortunately, there are tests by which the earlier parts of his book can be tried; and, on the whole, they square exceedingly well with contemporary records of undoubted authenticity. Barring his exaggerations respect- ing the Falls of Niagara, his local descriptions, and even his estimates of distance, are generally accurate. He constantly, it is true, magnifies his own acts, and thrusts himself for- ward as one of the chiefs of an enterprise, to the costs of which he had contributed nothing, and to which he was merely an appendage ; and yet, till he reaches the Mississippi, there can be no doubt that in the main he tells the truth. 3216 As for his ascent of that river to the country of the Sioux, the general statement is fully confirmed by LaSalle, Tonty, and other contemporary writers. For the details of the journey, we must rest on Hennepin alone, whose account of the country, and of the peculiar traits of its Indian occupants, afford, as far as they go, good evidence of truth. Indeed, this part of his narrative could only have been written by one well versed in the savage life of this northwestern re- gion. Trusting, then, to his own guidance in the absence of better, let us follow in the wake of his adventurous canoe.” Counsel for complainant asks that the footnote of that passage also go in. The Court. All right. Counsel for Defendant. After I get through you can read it. 3218 Counsel for defendant calls attention of witness to chapter entitled “Father Louis Hennepin,” in volume 4 of Winsor’s 993 Narrative and Critical History of America in which it was said that it was the general belief that Hennepin had committed a fraud ; that Bancroft called Hennepin’s Journal a lie; that Brodhead called it an audacious falsehood, and that Parkman deems it a fabrication, and has critically examined Hennepin’s inconsist- encies and that Gravier classes his narrative with Gulliver’s. Counsel asked witness to look at that portion of the chapter and state whether or not he does not understand that to refer entirely to Hennepin’s work of 1697. A. The text shows that it refers to the Nouvelle de Couverte, published in 1697, everything goes along under that heading, bib- liographical reference. It refers to — that is the same book, the new discovery refers to that same book of Thwaite’s edition. It does not refer to the edition of 1681 of Hennepin’s works; it says plainly here 1697, at Utrecht. It is true that Mr. Shea re-examined the whoe matter of Henne- pin’s truthfulness after these gentlemen had passed their opin- ions upon them and came to another conclusion. 3219 Counsel for Defendant. I hand you a statement you read from Shea. Bead it. The Witness : ‘‘Dr. Shea’s later views, as expressed in his English trans- lation of the Description Louisiane (1683) is that Hennepin’s manuscript or revamped copy of his earlier books as pre- pared for the printer by himself, was subjected to the man- ipulations of an ignorant and treacherous editor who made these insertions to produce a more salable book, and that Hennepin was not responsible for it in the form in which it appeared. Shea’s arguments to prove this opposite of the generally received opinion, are based on inherent evidence in the insertions that Hennepin could not have written them, and on the material evidences of these questionable portions of the book having been printed, at a later time than the rest of it and in different type. The only re joiner yet made to this exculpation is by E. D. Neill in a tract on the writings of Louis Hennepin, read before the Minnesota Historical Society, in November, 1880, in which the conclusion is reached that nothing has been discovered to change the verdict of two centuries, that Louis Hennepin, Eecollet Franciscan, was de- ficient in Christian manhood.” The passage read from is on page 254. 994 I understand that Dr. Shea’s final conclusions of 1880 are ac- cepted by historians at the present time so far as Dr. Shea has rank as a prominent historian, and in that line he is considered very high authority. I take it that all the criticisms that have been quoted to me this morning referred to the edition of 1697. 3222 Eobert Moore, witness called by defendant, testifies: Am approximately 70 years old. Eeside at St. Louis. Am civil engineer. I have been the largest part of my professional career employed in the location and construction of railroads, — with lines that have been merged Into larger lines or systems. Witness mentions several railroads that he assisted in building and says, I have also constructed a terminal system in St. Louis for the Merchants Bridge Terminal. Have had much to 3223 do with the construction of the Southern Illinois, part of the Southern Illinois and of the Southern Missouri. I have practiced my profession about 45 years. I have served as con- sulting engineer for (witness mentioned several railroads). I am now consulting engineer for Chicago, Burlington & 3224 Quincy Eailroad. My work as a civil engineer has brought me into the work of river terminals, their location, construc- tion and protection; protection from the action of the water, from the floods and the erosion by the currents. This includes protection from the Mississippi Kiver. I have built river ter- 3225 minals in the Mississippi Kiver at St. Louis and fifty miles below, at St. Genevieve, two in each place. I was sewer commissioner for four years and as such w^as a member of the Board of Public Improvements. I was a member of the Board of Engineers appointed by the President to pass upon the plans and the value of the work at the mouth of the Brazos Kiver, and the value to the Government. The year 1897. That work consisted of jetties built out into the river to deepen the chan- nel and to resist the action of the waves. It is on the Texas coast about forty miles west of Galveston. Those works are very extensive and 1 am not sure whether they are in exist- 3226 ence now or not. In 1899 I served as a member of an engi- neering board whose task was to pre])are a plan and an esti- 995 mate for a deep water channel in the southwest pass of the Mississippi River. The Eads jetties is the south pass. The southwest pass is now the greater channel. The plans and 3227 estimates were substantially carried out with some changes. I was occupied about a year in that work. My recollection is that our estimate was about six million of dollars. In 1896 I appeared before the Southern California Harbor Board, to pre- sent the case for the San Pedro harbor; that was followed by a report of the board in favor of San Pedro, which was ratified by Congress. I have had occasion to consult flood conditions in locating the river terminals in the Mississippi and in ‘locating railroad crossings; at every river you must consider the flood condition. 3228 In the year 1904 or 1905 I was appointed on behalf of the owners of bridges over the Kaw River in Kansas City, imme- diately after the flood of 1904, a body consisting of some seven or eight railroads, and the Union Stock Company, which had a bridge over the river, to report upon the practicability of regulating floods of the Kaw River. After a very exhaustive study of the subject, 1 did -report a plan with an estimate. I think the work was not car- ried out for the reason that a local board intervened which has tangled it up so that I think nothing has been done. It included all the owners of bridges over the Kaw except the city and county. Beginning with the year 1899, I have, every year, periodically in- spected all over the river crossings of the Burlington system, of the Mississippi and Missouri Rivers. On the Missouri, near the mouth, is a crossing known as the Bellefontaine crossing; the next one is the Kansas City crossing, above that is the Roulo crossing; next above that is the Nebraska City and next is the Platte 3229 crossing which is the last one owned by the Burlington. I e have also less critically examined the Atchison crossing and the Leavenworth crossing over which they run trains. On the Mississippi River crossings, there is the Quincy, the Burlington. Rock Island, and Winona. My examination of these bridges was with reference particularly to the maintenance and condition of the superstructure and the substructure of the bridge itself, but the point requiring chief attention has been the river protection work, work designed for the protection of the bridge and the railroad 996 Moore, — Direct Exam— Continued. from erosion and destruction by the Missouri, mainly the Mis- 3230 souri, because that is an especially unruly stream. My work has informed me as to the effect of rivers and the wash of rivers upon earth and banks of rivers. AYhen I spoke of river ter- minals that included river inclines, that is at St. Louis and St. Genevieve. I have been vice president of our local engineers club at St. Louis ; I have been president of the American Society 3231 of Civil Engineers. Am a member of the Institution of Civil Engineers of London. I have had occasion to study the ef- fect of rivers or pools upon earthen, artificial embankments. My father was an engineer and builder of canals and my earliest recol- lections are hearing his discussions, so I was brought up in an atmosphere of canal engineering. My father had to do with the White Water Canal in Indiana, built in the early 40 ’s. My 3232 father’s father I knew very well. In his early life he was an engineer on the Erie Canal and then on the North Branch of the Canal of the Susquehanna, canals of Western Pennsylvania, particularly the canal from Beaver to Erie. I think he located and partly built the West Pennsylvania Canal. I visited the Des- plaines Eiver at Dresden Heights at the proposed dam of the Economy Light & Power Company yesterday. I examined the tow-path bank at that point — I mean at the' point indicated on the map shown. The character -of the material is granulated clay or clay interspersed with gravel, with somewhat large stones. I class that as very desirable material for the construction of 3234 a bank of that character. Assuming that the dam will raise a pool which will flow on the tow-path bank, on the river side, to a point seven feet below the original level of the tow-path, before this two foot addition had been made, in my judgment, I should not expect any injurious effects. If there was a very large pool unprotected there might be an injurious effect, due to waves. It could be avoided by covering the banks with riprap. Biprap- ping is not a very expensive operation. The necessary protection there could be accomplished at a moderate expense. I think there is no engineering difficulty in protecting that bank against 3235 any such wave action. Not all of it would have to be rip- rapped. I went up to Channahon. Following the tow-path bank at a number of points, the bank is very shallow and would 997 require no protection at all. At other points it is at present very well protected against the action of the waves by dense under- growth of trees and brushes. Eoughly speaking, I should say half of it is protected in that way. I have seen the plans of this proposed work. I do not know what the estimated cost 3238 of building the dam is. I would not undertake to estimate that. I have not measured the height or length so I could only give the unit cost approximately, that is the cost per foot, assuming a certain height of the bank. I estimate the cost of rip- rapping the banks 12 feet in vertical height,* it would be meas- ured on the slope 27 feet, $3 per running foot of the embankment ; that is measuring a foot along the embankment, which for a mile would be $15,840 per mile. I expect that that cost would cover a very large part of the banks, a good deal of it is less than 12 feet and some of it is more than 12 feet high. If 16 feet in height it would be 36 feet on the slope, that would be $4 per lineal foot, or $21,120 in the mile. I should say that the latter figure was an out- side figure. This rip-rapping, carefully placed twelve inches thick to the top of the bank. I feel confident that would be sufficient to protect the bank. I think there would not be danger of injury to the bank, assuming that the level of the pool is about seven feet below the original level, from saturation of the bank. I ex- 3240 amined the tow-path bank in this sense. I saw soundings made by one of our party as to the depth of the water, out toward the center of the canal and at another point I actually sounded myself from a skiff, and I found that for several feet out from the water’s edge, it was approximately level and then broke off with quite a steep slope. First of all the earth embankment on the canal side has been somewhat wave worn and it is very nearly vertical toward the water’s edge. Beneath the water there was a depth yesterday of 12 to 18 inches for three or four 3241 feet from the water’s edge toward the center of the canal. At that point it breaks oft at a very much steeper slope, I should say 45 degrees. There is a bench there three or four feet in width. (Witness shown map marked for identification as Woermann Ex. I, Atlas, p. 3958; Trans., 6630; Abst., p. 1934.) Near the location of the power house some new stones have been piled on the water edge. I cannot state from personal 998 Moore, — Direct Exam. — Continued. knowledge whether that stone goes beyond the bench into the canal or not. From my observation there I do not think five feet of the navigable channel of the canal has been filled up by that rock. I donh think it would make any differnce in regard to dan- ger to this tow-path bank with such a pool on the river side from vermin, muskrats, crawfish, etc., than there would be without the pool. 3243 I observed the old piers standing in the middle of the river above the dam. I went out to the water’s edge and saw them. They were said to be piers of an old aqueduct feeder. I would not undertake to restore the aqueduct box On top of 3244 those piers in their present condition. They are badly dis- integrated. I do not think I would carry the water by an aqueduct of such nature as used to be carried upon those piers. I should think it would be better to carry it by what is known 3245 as an inverted siphon by iron or concrete pipes. It is simply pipes that join together so the water will not come out of them, which are laid on or below the bed of the stream, and then brought up to the desired level on each side; simply a downward bend in a closed iron pipe. The existence of the proposed dam would not be an obstacle to carrying the water by such an in- verted siphon. As I understand the conditions the existence 3246 of the pool created by the dam would present no obstacle to boats in being taken into the Illinois and Michigan Canal from this feeder. You could provide locks which would let you in from either side. Q. I show you a blue print or a profile of the Illinois Eiver and of the Illinois and Michigan Canal, marked Woerman Exhibit 2. State whether or not in your opinion Desplaines Eiver as shown by that profile, was a navigable stream. A. I have examined the profile. It shows at one point, through the City of Joliet, a water surface which is approximately from six inches to eighteen inches above the bottom, that bottom being largely rock, as I understand from my observation yesterday. I should say a condition of that kind was inconsistent with navigation in a commercial sense. At a point further down, it is also a much steeper slope, which at one point, wdiere the surface of the water almost touches the bottom, certainly less than a foot deep, on which I should say the same 999 thing. That is a very steep slope and a very shallow channel , somewhat deeper until we reach a point near the mouth of the Kankakee, where it is an old dam where the depth is approximately zero — I suppose on the dam — but very shallow, even without the dam. It would be very near the proposed Economy Dam. I think it is a short distance above it, near the mouth of Desplaines 8248 River. I should not call the river navigable at that point. Yesterday I went from Joliet to the mouth of the river. Our route was rather circuitous and not along .the river. I saw 3249 it in Joliet from the Rock Island bridge. I should say that on yesterday I didn’t conceive of any commercial navigation that would undertake it. C ross-Examination . 3250 I will be 70 years old my next birthday. Commenced en- gineering when about 25. The principal work was in railroad engineering. Was chief engineer for Merchants Bridge Terminal Railway, St. Louis, on both sides of river. There is a steel trestle for cars. The work was substantially laying several railroad tracks that center at the end of the bridge. No hydraulic features were there. I was consulting engineer for two terms for the Ter- minal Railroad Association of St. Louis, which owns the Eads bridge. The work there was similar to that just mentioned. I was identified with the Cleveland, Loraine k Wheeling before it was merged as part of the B. & 0. We crossed the Tuscoras River in one place, put a dam across it and diverted it into a new channel. I was identified with a branch of the B. & 0., running southeast from Springfield. Except as incident to the crossing of streams, there was nothing exceptional there. 3253 Was identified with the Illinois Central from St. Louis to Springfield. There was nothing about that different from or- dinary railroad engineering. In Southern Missouri we had 3254 direct contact with the Kaskaskia and Mississippi Rivers. We crossed the Kaskaskia but ferried across the Mississippi. Locating a ferry at right angle is a matter of difficulty. The river terminals mentioned are perhaps called car ferries, two of them were for the crossing of the Southern Missouri the other was a terminal built for the Illinois Central and one which had failed for the Vandalia. 1000 M oore, — Cro ss-Exam . — C o n timi ed. 8255 Q. Let me summarize: Was there anything in any of those matters other than the ordinary railroad building and the connecting of a railroad track with a ferry! A. Well, the building of an incline, which shall be successful, involves a consideration of the regimen of the river and your ability to protect it after you have built it. The one which I rebuilt for the Yandalia, had failed because of the faulty location and had been considerable source of trouble and expense for many years. I was consulted in the mat- ter. I relocated it, and rebuilt it, and it was practically success- ful. 3256 A delicate proposition is locating and building it prop- erly and protecting it against the action of floods and ice. I was sewer commissioner in St. Louis four years; that had to do simply with the sewer system, to get rid of the sewage of the city but there were some serious problems in connection with it. We put in all kinds of sewers, one very large brick and stone one, 20 feet high. I did not make the original design. The con- 3257 struction had begun before my administration. I extended it and I had occasion to note some defects in its original de- sign. I suggested changes and they were adopted, although at my resignation. That sewer was constructed more than 30 years ago. It broke out in high floods at one time ; I do not mean to say it went out of service. There were two breaks in it, before I took charge of it. It was afterwards repaired and is in use to-day. 3258 A private syndicate of gentlemen living in Chicago at- tempted to build the harbor on the Brazos River in Texas, 40 miles west of Galveston. There were walls, mattresses and stone called jetties, which were built mainly to confine the waters of the Brazos river, so that it would scour out the mud and maintain a navigable channel. There were jetties similar to those built by Eads at the south pass of the Mississippi. The work was to con- trol the current of the Brazos River so that it would scour a deep channel, to secure deep water. Q. Is it not the truth that the sand or silt coming down the river, deposited itself just outside the mouth of the river in the gulf and formed a bank that the boats couldn’t get over, and wasn’t the problem to build some stone walls so as not only to cause the 1001 airrent of the river to wash hut to have the currents of the ocean catch all sand and carry it away, so it would not form again. A. After the material had been carried out to the end of the jetties, it was hoped the ocean would do the rest. It was not absolutely successful but relatively unsuccessful. They didn’t get the depth of water they anticipated; in that sense it was unsuccessful. The contemplafed navigation at the Brazos Harbor was an d2b0 ocean going commerce. In 1899 I served as a member of engineering board made up of two army and two civil engin- eers, to make i)lans for the outlet of the Southwest Pass of the Mississippi Kiver. I was one of the civil engineers. Pass a Loutre is a wider pass but the Southwest Pass is deeper, except at the mouth. It is the best pass from the point of navigation from 3261 all of them. There are three passes at the mouth of the Mississippi Kiver; the one further west is the Southwest Pass and the one further east Pass a Loutre and the middle one. South Pass. For the last thirty years commerce has gone out of the South Pass. Q. Isn’t it true that engineers have estimated that 45 i)er cent, of the water of the river goes out of the West Pass, about the same amount out of Pass a Loutre, and about 10 per cent, out of the South Pass! A. I don’t remember the figures, but I am quite sure that is not true. 3262 The Southwest Pass is deep water. The depth of the Southwest Pass, through the greater part of its length, is from 50 to 60, sometimes 90 feet, with shallows at the upper end and a bar at the mouth. That was its normal condition. I think the depth over the bar at the upper part was 18 feet, perhaps 20. The problem we had to do was to find means of deepening the waters at these shallow places, to get rid of the sand bank and to take it away. The Government has taken that sand bank away, cut a channel through it, and the material, which was the ob- struction, has been taken away. Part of it was done by building stone walls in the ocean until the current washed it out; the rest was to dredge it. We expected both agencies would be used, the force of the current, aided by dredging, and in all probability, a dredge would be necessary to be kept at hand, to keep it open hereafter. 1002 M 0 0 } 'c , — C rc ss-Exa m . — C on tin u e d . Q. Aren’t you mistaken about that, and isn’t this the truth: That the object you gentlemen were called upon to accomplish was to prevent the necessity for dredge boats and to make a chan- nel that would wash itself and carry the current until the lateral current of the Gulf would carry it away? A. That was 3264 a consummation devoutly to be wished, but we didn’t expect it. I know Professor Haupt and know his scheme to accomplish that purpose, consisting of one pier instead of two. Q. Wasn’t it a problem that you gentlemen were called upon to determine whether or not Professor Haupt ’s scheme of one wall, one jetty would till the bill, or whether it would take two. A. The problem was simply, as I say, to prepare a plan for deepen- ing the Southwest Pass of the Mississippi Eiver. Incidentally Professor Haupt ’s plan was considered, but it was not considered feasible and it was not the plan which was formulated. Q. Your problem was to build a stone wall into the Gulf of Mexico, out onto the sand bar, and by the aid of a dredge 3265 and the current afford a deep channel into the ocean. A. That is about it. Q. And it consisted in carrying out cargoes of immense big stones, dumping them over and forming a wall of them? A. Well, not very large; they were to be founded on mattresses and pro- tected by piling. Eeally, I can’t tell you because I had nothing to do with the execution of the work, but only on top would they use very large stones. On the top of such jetties it is desirable to use such stones as would have to be lifted by derricks. It was topped off with stones four or five feet square or more. The part we had to do was to help plan this stone wall. As I understand, it is nearly finished. I can’t speak advisedly, but I think they have to use a dredge in connection with the current. The chairman of the commission was Colonel Eobert, U. S. Engineer Corps, the other members were Major George M. Derby, Major Starling and myself. I don’t know of but one estimate to make the roadway at and deepen the Southwest Pass. There was one made a short time 1003 before the appointment of our commission, but I have no 3268 personal knowledge of others. I was associated with the es- tablishing of the harbor at San Pedro. The truth is, there was a conflict of interests, between San Pedro and Santa Monica, as a harbor for Los Angeles. The board was appointed under an Act of Congress to go and determine which of the two places would make the better harbor. Approximately, the board consisted of Admiral Walker, a member of the coast survey, and I think three civil engineers; George Morrison, Prof. Burr and Col. Morgan. Los Angeles is about 18 miles from the coast. These two points are about equal distance from Los Angeles. The Huntington in- terests were striving to establish Santa Monica as the harbor, and other interests were trying to establish San Pedro as 3269 the proper place. I represented the owners of the Los An- geles Terminal Railway. There were questions of harbor engineering involved, the proper location of the breakwater, the shelter it would afford, room for anchorage, the possibility of de- veloping the inner harbor, which was present at San Pedro and not at Santa Monica. 3270 Q. Was not the inner harbor already established at San Pedro and appropriations made and work done, and prac- tically finished! A. In a small way, yes; but it admitted of a very large development. The problem was the establishment of a harbor refuge, and of commerce, two quite different things. Q. Taking the coast line from Santa Monica and the angle inci- dent to the coast line and comparing that with the angle of in- cidence to the coast lines at San Pedro, wasn’t that the problem that this board had to decide and did they not decide it on 3271 that proposition! A. I should say no, they decided it on a number of considerations, the considerations being the pos- sibility of obtaining adequate shelter at two points for a harbor of refuge which depended upon a lot of questions of topography, of depth of water. The water was deeper at Santa Monica but there was no shelter. One feature was that the San Pedro 3272 harbor had the least exposure. I think it is true that three several boards prior to this one, appointed by Congress, had each selected San Pedro. One feature was that the space for railroad tracks to get to Santa Monica was confined to a space on 1004 Moore,— Cr'oss- Exam . — C ontiniied. i ecount of the mountains and that the Southern Pacific Eailroad controlled that and other interests insisted upon going to San Pedro. Several hundred thousand dollars had been appropriated and expended in building the inner harbor at San Pedro before this commission was appointed. Q. The inner harbor at San Pedro was made by a strip of land at some little distance from the coast line, extending parallel with the coast line, forming a possibility of extending it five or six miles. A. It was the coast line, that is, within the inland there was swampy, marshy territory which could be very easily dredged and developed into a harbor of enormous extent. There was a small river there up which there was navigation. I did not know the depth of the water. I think there was approximately five feet, but it had already been deepened to 14. One of the important features was to consider which of the two places 8274 would afford the best shelter in case of storm. To consti- tute a harbor of refuge at Santa Monica it was very difficult to construct a breakwater which would afford adequate portection. At the time I speak of there was one pier built by the Southern Pacific, extending 2,000 feet at the end of which they got deep water. Near the shore it was much shallower. It was a very expensive pier and its further development was a very ex- 3275 pensive operation. The prime point in the problem was first to try to obtain a harbor that should give adequate protection against the wind and waves, which would constitute it a safe harbor in rough weather. There was no sea wall at Santa Monica. The building of an adequate protection against the wind and waves at Santa Monica was a ver}^ serious matter. That was the controlling factor as far as a harbor of refuge was concerned. The building of such a breakwater at San Pedro was simply the extending of an existing point to make it adequate to the future needs of commerce. In the report made, Mr. Morgan dissented The engineering projects consisted of building suitable works, breakwaters and dredging. 8276 In connection with the Kaw River at Kansas City the problem was to provide proper protection against the re- currence of such a flood as had happened on the river in 1904. (J. Then your prime object was to deepen the river in some 1005 way so that the flood water would pass off rapidly! A. 3277 Of course the bridges, or rather the piers of the bridges as a mere obstruction to the flow of water were considered. In most cases the piers of the bridges were made of rock or cement. The Kaw Elver runs in earth embankments. It was a silt bank, where the banks formed of silt, and required protec- tion, and part' of the project was a recommendation for the 3278 protection of the banks by a plan of extended revetment. Eevetment is a word meaning to clothe the banks, protecting it against the action of the waves. It has already been revetted and protection work put in, but of a very bad sort, most of which I recommended removed. Eiprapping is one method of revetment. There was an artificial embankment made by dumping the refuse from the stock yards. It was an embankment which did not 3279 need protection, the others did. There were no other arti- ficial embankments, nothing except the natural banks of the river. I recommended revetment. _ There had been a good deal done in the way of protection work including some spur dikes. Spur dikes is a kind of stone built out from the banks of the river projecting into the river at right angles, usually to the banks of the river. I believe in the upper river they are called wing dams. 3280 The point where they are used for the purposes of naviga- tion is to contract the channel. They are also sometimes used as a means of bank protection. If they are built very close to- gether they have the effect of creating a new bank, but in the case of the Kaw Elver it was clear that they were sources of ob- struction and damage and of no value whatever, and I recom- mended the removal of all of them. The prime object was to provide a more efficient channel for the carriage of flood waters and incidentally to close the banks so as to prevent damage to adjacent industries. 3281 Q. If you build a spur dike or a wing dam from the shore into the river, the effect of that is to immediately narrow the channel, then why would you build a spur dam to cause a big- ger and better channel! A. There was not room enough. The spur dike occupied the space needed for water. My recommenda- tion was to take them all down. Q. You have examined railroad bridges that cross the Missis- 1006 Moore, — Cross-Exam. — Continued. sippi and Missouri Eivers! A. Yes, sir. With a view of pro- tecting the channel in part so that it shall always go under the bridges ; also that it shall not flank the bridge and cut the railroad in two. All the usual devices for protecting the banks of the river are used. 3283 Q. If your work in the examination of these bridges cross- ing these two rivers was not to protect the piers next to the land at each end of the bridge from being surrounded by water and destroying the bridge? A. That was one part of it. The railroads had to take care of the river bank for long distances up the river in order to protect the railroad, sometimes for miles or more away from the site of the bridge. One instance is at 3284 Rolo, that is a crossing of the Missouri River, thirty or forty miles south of St. Joe, on the Burlington Railroad. There is no trestle work but an embankment. It has been filled in for years, existing as a solid bank. In that case it has been neces- sary to carry the revetment back three miles up the river. Another point is Nebraska City. The problem is somewhat dif- ficult, but the general feature is very much the same. There is no trestle work there excepting over the old channel some distance east of the present river. Mr. George S. Morrison 3285 built the bridges at the points mentioned years ago. Plattsmouth is another instance of the same kind. That is the crossing of the Missouri River by one of the Burlington lines. In that case that would be necessary to extend the revet- ment for a long distance up the river. Mr. Morrison designed that bridge work originally and built the bridge, but the work of revetment building is a continuous work; must be continually renewed and extended, because the river is constantly threatening to get in behind at the upper end. The Government has done in some cases a good deal of it. I donT know that they have 3286 done any of it at Plattsmouth. I am not familiar with its past history throughout, but as I understand it, all the ex- isting revetment at Plattsmouth has been built by the Burlington Road. Q. There are none of these matters that you have mentioned, either that I have asked you about, or that I have not asked you 1007 about that you participated in had a river on one side of the bank and a canal on the other, with a bank relatively a few feet between them, did they! A. No, sir; exactly that situation was not presented. ‘‘Woerman Exhibit 3’’ presented and marked for identification. R e - di re ct Ex a m in at ion. Q. Have you made an examination of the map (Woer- 3288 man Exhibit 3) since you were on the stand last night! A. Yes, sir. That is what is known as a contour map of a part of the canal and Hesplaines Eiver extending from the mouth of the Kankakee River, several miles up stream. All the lines showing elevations are drawn out showing dif- ferences of level of one foot. They show the level of the tow- path bank, the level of the base, and the level of the intervening space. I have examined the plat with reference to ascertaining the elevation of the tow-path bank for the portion of the canal shown upon the map, and from that examination figured out the cost of riprapping that bank in such a manner as to protect the bank when the pool shall have been raised. I got the elevation of the base of the embankment at intervals of 500 feet along the line of the canal from the mouth of the river to the road extend- ing at Channahon, a distance of 20,000 feet. The base of the embankment, of course, the top level of the canal is an estimate as an elevation of 86 on the datum plane used upon this map. 3290 The top of the bank I estimate as 86 level, of course, at it goes, it is a level work. Then, the difference between the elevation of 86, and the series of elevations of the toe of the embankment, give the ditference, and that is the slope of the bank to be protected. From those data I made an estimate on two suppositions, the first of which, that certain parts of the bank which are rather, their insufficiency is greatest, and where there is no protection from the vegetation, the trees, the underbrush, only should be protected a stretch of 2,000 feet from the mouth of the river, and another stretch of 3,500 feet at the point 6,000 feet above, and extending 3,500 feet. The cost of riprapping that figured out $22,400. That is the part which I should say, prac- tically the only part now, where revetment was essential; but I 1008 Moore, — Re-direct Exam. — (Jontimied. also made another estimate upon the supposition that the whole embankment was revetted for the entire 20,000, which figured $50,000 in round numbers; that is, 20,000 feet or 3 8/10 miles. The revetment extends to the top of the bank. The top of the bank would vary at various places in this 20,000 feet; it varies from nothing to 20 feet vertical. Re-cross Examination. 3293 Q. If a dam is constructed at the proposed site it will flood the tow-path bank on the river side, will it not? A. It will flow along the base of the bank and cover the base of the bank for a considerable part of the way, and for another considerable part of the way it won’t flow against the base of the bank. 3294 The base of the bank is where it joins with the natural sur- face of the ground. I do not recall how high up along this tow-path bank it will be flooded. I understand that the ordinary level of the pool of the dam will be seven feet below the present elevation of the top of the tow-path. The top of the tow-path is now supposed to be in its present condition, 84 as I understand it. Q. I want to know how much it is up and down in feet, how high will that bank be flowed up and down from the top 3295 where the water would be alongside of that bank? A. Thai depends upon where it is. That elevation of the water is 7 from 84, is 77, as the normal stage of the water in the pool of the dam. Now, the base of the embankment, or the base of the natural surface of the ground, rather, at the base of the bank varies from 66 — that is the least I find, 66, 70, 74, up to 84 — in other words, the height of the bank varies from zero to 15 or 20 feet. It is zero where the surface of the ground is 86. 3296 In estimating these costs I took into account simply the cost of riprapping. The cost of widening this tow-path l)ank nor for raising it is not taken into account, just riprapping on the outside. I did not get any information as to where this stone was to come from except that it comes by boat. I was told by the contractors what the cost of getting it was and based my figuring on that. The thickness of the riprapping was 12 3297 inches. Riprapping is not solid masonry; water will soak tlirougli it. I do not understand that an embankment of 1009 day is saturated with water. The understanding is tliat it is im- permeable. Q. If you dig a trench three feet wide and six or eight feet deep in blue clay and build a cement wall a foot thick on that, and a superstructure above it and leave the sides of your wall so that the water gets in there by the side of your cement wall, will it not saturate through the blue clay, go underneath your wall and be very liable to cause your wall to slip and fall I A. I 3298 should say no. I would say this : A very usual method of pro- tecting a reservoir embankment against the action of water permeating the embankment and destroying it is to build what is known as a puddle wall or core, in the center of it. The puddle wall is built of clay for the purpose of arresting the flow of the water through the embankment. What they put in on the out- side of the puddle wall depends on what material is at hand. If that is clay it may need no puddle wall; if it is sand or other material that is easily permeable with water, that water would be arrested by the puddle wall. The puddle wall is not protected with cement or anything of that character. It needs no 3299 protection. I found a bench or wave berm, as stated yes- terday, on the canal side of this tow-path bank between three and four feet wide. I did not go much into the history of it, whether it was a matter of original construction or whether it is the rsult of the action of the waves and the use of the canal, I should think very likely it was the action of the waves. If it was full up as it originally was, I should think it would be more stable than it was before. It was a gradual washing of the dirt from behind the wall which may have let it down. By behind the wall, I mean on the canal side. There is a very considerable wave motion due to the motion of the boats. On the other 3301 side where this pool will be formed and where the width would be anywhere from 600 to 800 feet, and where there is a considerable current likewise coming down, the banks 3302 will need protection. If there was a navigation such as could be had on 14 foot depth of water by boats of that mag- nitude, it would emphasize the need of protection. The effect on the river side if made up would be to saturate the outside of it a short distance in, perhaps a few inches. If it is wet in 3 inches 1010 M 0 0 re, — B e-cross Excidl — Continued. I should say that the stone will not be liable to slip down and fall. The slope given was two feet horizontal to one vertical. I 3303 did not examine the specifications as to what the slope would be — I saw none with reference to the protection of this bank. I saw a cross section showing the revetment. I think it was Woerman Exhibit 1. That is the only thing I have seen, either of plans or specifications indicating the manner of protecting part of this work. In raising this tow-path bank I understand it is left the same width as before, simply raised up a little 3304 higher. There was a wall of stone built in the canal rest- • ing upon this berm or bench I mentioned ; that would narrow the water in the canal probably two or three feet, that was in a very shallow water, not navigable water. From my observation it was about 18 inches to two feet above the level of the 3305 water. I saw it sounded where it was about 18 inches; that was on the edge of the canal. This stone embankment * is on the edge, presumably on that bench. I did not sound it right at the end of this stone bank. I don’t know how far down into the prism of the canal this embankment went. - I do not know the price of labor employed down around the site of this place. I do not know what it would cost in labor to do this riprapping, because I have had no occasion to work 3306 in that particular locality. The stone might be brought from anywhere on the canal. I don’t know where. The 3307 prices of riprapping do not vary very greatly. It is all about the same thing. You can get stone all the way from fifty cents to one dollar a yard, almost any place in the United States, fifty cents is the minimum. I used a higher price in my estimate. I used three dollars a yard in places. By fifty cents, I mean raw material. The difference between one dollar and three dollars would be for the work and for the transportation. 3308 Fifty cents would be a very low price and a dollar would be a medium price. I put the cost of riprapping at one dollar a square yard. That is equal to three dollars a cubic yard, which I think is more than it will probably cost. In this estimate I lumped the raw material and labor together; that was predicated upon my own experience as to the probability and the reason- 1011 ableness of that price. I mixed those two. I used virtually mv own judgment of what it ought to cost. Q. You say you have had some experience in trying to hold the Missouri River bank? A. Yes, sir. The standard estimate for complete revetment of the 3309 Missouri River bank which includes a mattress going out un- derneath the water and the riprapping and the incidental work of placing, is about ten dollars per running foot. That, how- ever, is a very mmcli more serious thing than mere riprapping, and I would say that that is a full and high estimate. My figures were only for riprapping one side of the bank and I allowed nothing for any other cost or expenditure, save and alone the riprapping. I would say that the feeder wdiere the old piers were standing was from 18 to 20 feet wide and probably 4 or 5 feet deep. The water can be siphoned from the river up into the canal. I have not figured out the size of the siphon it would take to run .the water that would be carried in the feeder, but it would be entirely practicable to do.^ The usual method is laying cast iron 3310 pipes, which may be probably 48-inch pipes. The pressure of the water behind it makes it go uphill. It is a very com- mon process. Water flows through bends in the pipes. It is simply governed by the head of the water at the upper end. The full term is an inverted siphon. The velocity through the pipe would be very much greater than it was through the feeder. You would not need the same cross section in the pipe as in the 3312 feeder. The velocity of the current through the siphon would depend upon the elevation of the water above the siphon, between the upper end and the lower end. The difference in levels between the place where it goes in and where it comes out. 3313 Q. You said that the velocity of water in the siphon would be very much greater than it was in the feeder. Therefore, you would not require so big a pipe as there was area in the feeder, and I am asking you if that is not dependent entirely upon the elevation of the water behind the siphon? A. The force which produces motion through the siphon is the difference of level between the water at the entering end and the end at which it goes out. In the flow of water in the channel that difference 1012 Moore, — Re-cross Exam. — Continued. would be very small, but by making the difference of level greater you can produce any velocity you desire. 3314 The Witness. The whole point is this, that in a stream in motion, with no water entering it or leaving it, the amount of water passing at any cross section is the same. If you have a small cross section, as you may, the velocity necessary to pass that amount of water is greater. In a broad cross section it spreads out and has a very slow velocity, but passing always the same volume of water per second. Now, in the canal, or feeder, being a much wider canal, the velocity necessary to pass a given amount of water would be very much less than it is in the narrow reaches of the same canal, or the same feeder, but with pipes there would be no difficulty in getting into the feeder the required amount of water. The head necessary to produce that is something that is very easily ascertained. 3315 Q. There is no data present in your mind or in fact that enables you to know that the velocity of water in this feeder, ^ when it was in operation, was the same as the velocity of 3316 water in the canal? A. Well, 1 haven’t any idea about it. The velocity in the feeder would never be very much more than the canal. I should say that as a rule the difference was very small, and that in either case the velocity is very low. Q. How big a pipe would it take for a siphon to put this water across there, in your judgment? A. I can’t tell you with- out figuring. I don’t think it would be very expensive. 3317 Q. You spoke of vegetation along the lines of this tow- path, or between that and the river, and I think ypu esti- mated roughly that half of the distance was in a sense protected by vegetation in one form or another, is that right? A. Yes, sir. There is some quite large trees, up to 12 inches in diameter. 3318 Really I cannot give you the estimate in figures. I saw quite a number of them. From Channahon down to this site of this dam, I went down on the tow-path bank. There are trees on the slope of the bank itself, in some cases a foot through. I saw one stump on the edge of the bank that was pointed out 1013 to me and it measured three feet through; it was cut down 3319 and had rotted. That was at the top of the bank. It looked as though it had grown there after the bank was built. I think the bank has been there approximately sixty or seventy years. From the situation of the tree, it looked as if it had grown there since that time. At some points the undergrowth of smaller trees are quite thick. At others they are sparse. It is brush up to saplings two inches in diameter up to large trees. If 3320 it is flooded with water and below the level of constant water, it will disappear ; where it is only occasionally flooded, it will not. Where it is below the level of constant flooding, the trees will die. Re-re-direct Examination. 3321 Protection is needed below the level of constant flooding only as a basis of security for the support of that which is above. The Southwest Pass of the Mississippi has not yet been opened. The width of the Southwest Pass is six hundred feet. The pro- jected width of the Southwest Pass is a thousand feet. The depth in the South Pass is a maximum of 26 feet; the depth to be ob- tained in the South Pass, in the Southwest Pass is a minimum of 35 feet. In other words, the new channel will be 35 feet deep and nowhere less than 1,000 feet wide. 3322 The breaks in the Mill Creek sewers at St. Louis did not occur in any work designed by me. A part of the sewer which was existing when I was in office, and which was in years before, gave way, and I designed plans for its renewal, which plans were carried out successfully. It has not broken down since. Mill Creek was a natural stream. The whole of it was taken into a sewer and all the tributary drainage. 3323 In connection with some railroad building, we diverted the Tuscarora Eiver in Ohio, by building a dam across it and diverting it into a new channel. At times it was a consider- able stream. Its normal flow was* about 100 to 225 feet wide. The revetment of the Mississippi River is very different from the revetment of the Missouri River. The banks of the Missis- sippi are relatively stal)le. They are rocky, gravel banks which 1014 Moore, — Re-re-direct Exam. — Continued. require very little protection. The cost of protecting and con- tinuing the protection of the Mississippi Elver is very much less than of the Missouri Eiver. 3224 I have had occasion to study the durability and resist- ance of ditferent kinds of material for artificial river banks. I have in mind a long revetment or protection of the west bank of the Mississippi Eiver at Quincy, which is exceedingly perma- nent. I think it is of very simple riprapping. There is no es- pecial care, no mattress work. The material of that bank is of a gravelly nature. I think there would be no difficulty upon the hypothesis that the pool should be raised and that there should be 14 feet of navigation in that pool, in protecting this bank. 3325 The wash of the waves is greater in a narrow channel, due to the motion of the boat-s. It is a proper interpretation of my answer to say that the wave wash would be less effective on the outside of this bank if the pool were placed there, than the wash from the boats in the canal. In my opinion the manner of protection indicated on M^oerman Exhibit 1 is adequate. Eegarding the filling in on the inside of the canal, all that I saw and all that I learned indicated that the slope of the part added was substantially a continuation of the slope below. By a conference with the contractor, I ascertained what the prices were for doing this work of protection. The cheapest labor does this kind of work generally. Re-re-cross Examination. 3327 When I said that the wash on the outside of this bank would be less than the wash in the inside, I meant that with the same navigation, a given boat on the inside, with its narrow width of canal, would wash more than the same boat on the outside in a greater width. The width of the channel is really the greatest factor in the production of waves. 3328 Q. Suppose you have a pool of water from 600 to 800 feet wide on the river side of this canal, of a depth suf- ficient for steamboats to ply up and down, drawing 10 or 12 feet of water, and carrying 1,500 or more tons of freight, and that they go at from 6 to 12 njiiles an hour. On the other a canal 60 feet wide of water with canal boats, drawn by mules on the tow-path 1015 and traveling at the rate of from two to two and a half miles per hour; which would get the bigger wash? A. I should think there should not be very much difference under those conditions. 3329 Elmore W. Bewley, called on behalf of the defendants, testified: Direct Examination. My name is Elmore W. Bewley. I am a captain, 58 years old. I reside at Bowling Green, Kentucky. I have been steamboating 40 years, began when 18 years old. I have steamboated on the Ohio, Barren, Bough, Nolin and Cumberland Eivers. I have a master’s and pilot’s certificate. Have been a licensed pilot for about thirty years. Have navigated sternwheel boats principally. Navigated on the Ohio and Green Eivers about eight years, 3330 Ohio alone four years. Green Eiver all told about 36 years. Trip about 200 miles long. The Barren Eiver we navigated between Evansville and Bowling Green. I steam- boated up the Eougli Eiver about 8 months (30 miles). Was on the Nolin Eiver about six months; 14 miles navigable. On the Cumberland Eiver, six months. Up to Nashville, 200 miles from the mouth. I have owned or had interest in the following steamboats : The Gayosa, Evansville, Bowling Green, City of Clarsville, Sun and Eescue. My constant occupation has been that of a steamboat man. I am still engaged in that business. Am running up the Kentucky Eiver next Thursday on a stern- wheel boat. I saw the Desplaines Eiver on the 28th of 3332 April, 1908. Went from Joliet down to the mouth. The Des- plaines Eiver, according to my judgment, as I saw it, is not a navigable stream for useful purposes of commerce, on account of the swift current and the rocky shoals. I saw it at several dif ferent places, I would not say just how many. AVe went down the river from Joliet to the mouth. We crossed the river six 3333 or seven times on the different bridges and down the banks ; where we could see the river most of the way down. The Ohio Eiver has a navigable stage in extremely low water, we navigated there on as little as 24 inches. Not without a great deal of trouble, however. It has not occurred in the last four years. 1016 Beivley, — Direct Exam. — Continued. Up to four years ago, it was most every year, in the fall of the year in extreme low water. It would continue from two to three months. We would find that depth at different sandbars, not the same depth at all the bars. Only at sandbars would we find the shoal water. ?>334: The Desplaines Eiver has a rocky bed in some places. Most of the bed of the Ohio River is mud and sand. There is a difference in the navigability of a river with a mud or sand bed at a low stage of water, and the navigability of a stream with a rocky bed at a similar stage of water. It is more difficult to navigate a river with a rocky bed, from the fact that you must have more water on the rocks than the steamboat draws ; in the Ohio River where you have sand you can run up on the sand and spar the boat over after several hours’ work. You cannot do this on a rocky bedded river because you cannot move the rocks and the sand you can move by spars. There would he a difference in the hazard to the boat in attempting to spar over a rocky shallow and a sandy shallow. You are liable in sparring over rocky shoals to injure the steamboat. 3335 I have done hut very little cordelling. I observed the ve- locity of the Desplaines River and its slopes, and the curves and bends of the hanks. Those matters enter into my opinion as to its not being a navigable stream. It is more difficult to navigate a crooked stream in a swift current than it is a straight. Q. Assuming that a river began at a point of the river 20 miles from its mouth, assuming that there is a fall of 38 feet in the first 4-1/2 miles or 8-1/2 feet per mile ; that in the next stretch there is a fall of 21 feet in 3-1/2 miles, with maximum slopes of more than ten feet per mile, containing islands and boulders, some visible and some submerged, with rocky bottom ; then next following in the de- scent of the river there is a pool 5 miles long with no fall, and next following that 9-1/4 feet fall in one mile, 9.4 fall in one mile, with maximum slopes of more than 15 feet per mile; as narrow as 100 feet, and having abrupt turns and boulders in the channel; and next following that descending stream a pool one mile long with practically no fall, and next following that a fall of 2.7 feet in one mile, with maximum slope of about 4 feet per mile, with a rock bottom and boulders; and next following that a fall of 2 feet in 1017 3-1/2 miles, and a rapids at the mouth, a fall of 3 feet in a half a mile, with a rocky bottom, — would you say that a riVer of that description could he navigated by a boat for useful purposes of commerce? A. Those being the conditions, I do not think it could be navi- gated. I would say a river which in 15-1/2 miles had a fall of 38 feet, all of which occurred in stretches aggregating 6-1/2 miles could not be navigated. Cro ss-Exami nci tion. 3337 Most of my steamboating has been on the Green and Bar- ren Eivers. The Green Eiver is in Kentucky. The portion navigated was 230 miles. Green Eiver proper. Eunning from a point 9 miles above Evansville, Indiana, to the Mammoth Cave, that would be the Green Eiver proper. Barren Eiver is 200 miles from Evansville. Our regular trade is between Evansville, Indi- ana and Bowling Green, Kentucky. We navigated the Ohio Eiver in that trade nine miles, the Green Eiver 170, Barren Eiver 30, making a 209 mile trip from Evansville to Bowling Green. 3338 Mammoth Cave is the head of navigation on the Green Eiver. At the head of navigation it is about 120 feet wide. In low water there is about four feet of water. Green Eiver is locked and dammed. After building Lock No. 6, the first lock below Mammoth Cave gives them four feet of water on the bar at 3339 Mammoth Cave. It is 122 miles on the Green Eiver from where you enter it just at its mouth, up to Mammoth Cave landing. In that district there are six locks and dams; they are not regular. The first pool is 60 miles, the next two, 45, the next is about 20, the next is 13, the next is about 17 or 18 miles. That is the head of navigation. The height of lock to hold the first pool of 60 miles is 14 feet; for the second pool, 45 miles, 3340 about the same; the next one, I think, is 17 feet approxi- mately; the fourth one, 14 feet; the fifth one is 13 feet, and the sixth one, 11 feet. These locks bank up the water about 3342 221 miles. I never navigated the river before these locks and dams were put in. The water from each of these dams back water clear up to the dam above it. I don’t know how much 1018 B eidey, — Cross-Exam . — Con t inued. water is added by each one of these dams at the point in the river just below the other dam. The river has a mud bottom, the prin- eipal part of it. In some places it has a rocky bottom. There is plenty of water over all the rock shoals. There is no navigation in Green River above Mammoth Cave at any time. x\fter you get above Mammoth Cave landing, you have a deep pool again. Slack Avater does not extend some distance up the river from there. I do not know how deep the water is in shoal places above there. I do not know how deep the water would be in Green River, if it AA-ere not for the dams. The current is greatly reduced in this river by Aurtue of the dam. In times of high Avater it would be ])retty rapid if it were not for the dams. x\s I understand it, the object of the dam is to give depth of water. 3344 The navigable length of the Barren River is 30 miles. There is one lock and dam on that river fifteen miles from the mouth. I do not know how deep the river is above slack water. I suppose the average width would be about 100 feet. Where it is navigable it is from 100 to 250 feet. In some places in the slack Avater aboA^e the dam, we have shoal places that in low water 3345 season is about five feet, four and a half to five feet. I think the dam is about 15 feet deep. The river is about the same depth below the dam. M^e liaA^e what we call there in low water season four and a half feet. The bottom of the river is graA^el mostly. The boat we navigated was 120 feet long, 25 to 30 feet across, AAuth a carrying capacity of 200 tons. The same size boat Avas used on the Green RiA^er on account of the locks. 200 tons of freight can be carried up as far as Mammoth CaA^e on the oMdO Green RiA^er. AVe had four feet in the shallowest place, at ^Mammoth CaA^e landing in the Green RiA^er. I navigated the Cumberland Rh^er. The Nowlin RiA^er is about 15 miles below the Alammoth Chwe, it is a branch of the Green RiA^er. It is naAugable 14 miles up, to Dismal Rock. The Avater from the dam in Green River below the mouth of this river holds the water up in this river. It aauis not navigable Avithout that. I sii])])ose that riA^er runs from 75 to 90 feet in width. It bolds 3347 its depth ])retty well all the Avay up. I sui)pose there is at least six feet of water all the way u]) at the shoal places. Some ])laces it is A^ery deep. In the locks there is four and a half feet of Avater in the miter-sill. 1019 S848 Rough River is a tributary of the Green River and is navi- gable thirty miles. It is about 90 feet in width. We have four feet depth of water in Rough River on the miter-sill. They have one lock on that river, eight miles above its mouth. It was not navigable before the locks were put into the Green River and Rough River except in high stage of water. Green River was ,3349 not navigable before this improvement. I suppose it would be, taking it all together, two to three months in the year. Before these locks were put in, boats sometimes w^ent up there in very high water. I can’t say for how long a period it was navi- gable yearly. Nolin River was not navigable. It was not safe to navigate that in high water. As to the Barren River, I am not sure as to that. In case of very high water you could possi- 3350 bly go up there, but you could not call it safe navigation from the fact that the river was narrow and the overhanging timber — I never cordelled a boat anywhere myself. By sparring is meant : We have on a steamboat what you call a steam capstan out on the head of the boat, and we run our boat down on the sandbar, and then we have big spars, great long timbers and we set the spar over on the side of the boat and put our line on the capstan, and we have a pair of blocks, and the spars canter this way (indi- cating) and go forward or around. You can get your spar to shove the boat forward or set your spar to shove the boat around as you may want. This process is used when you get into 3351 shoal places, get stuck on the bar. The process consists of making a fixed point with the spar, attaching that to the capstan and then by means of steam on the boat, turn the capstan and push the boat on up by its own power. 3352 I navigated the Cumberland River from its mouth to Nash- ville, 200 miles. The boat used was about 160 feet long and about 30 to 32 feet beam, tonnage 350 tons. When I was running on the Cumberland, that was before the improvement was made on the harbor shoals and the water got down to 24 inches there at one time. We made only one trip on that water and she was 3353 not carrying that much load. The name of the boat was J. B. Richardson. The year, I think, was 1904. The Government was at work on the river at that time. This boat does not go above 1020 Beivle^, — 'Cross-Exam. — Continued. Nashville. At Nashville we met boats that navigated above there. They were about the same size and some of them carried about the same tonnage. I don’t know how far they went up the river. I never navigated above Nashville. I don’t know the depth of the water. I don’t think it is as deep there as where I navigated. Where we navigated on the 24 inches of water we did not have a pound of freight. We were going down stream. We did not bring out anything over the shoals. We had lighters and used lighters over the shoals. What we call lighters are barges that we have in tow, and when we get to the shoal place where there is not enough water for the boat to go over with the freight she has got, we move it from the steam boat on to the barge, all of it, or 3355 as much as is necessary to let the boat over, take the freight over on the barges, and the steamboat over light. We have not done this frequently because it has been very seldom necessary. My principal work was done on the Green Eiver in slack water navigation. I have navigated the Ohio Eiver between Evansville and Cairo and Paducah, at times. I navigated that river down to about two feet of water; that was about four years ago. That has not occurred during the last four years, but prior to 3356 that it occurred nearly every year. From Cairo, Illinois, to Evansville, Illinois, is about 200 miles. I have been up as far as Louisville, Kentucky. Have not found the water lower than two feet. Small boats from 60 to 175 feet long were used on that minimum depth, about 30 feet beam. Over two feet of 3357 water you could not carry over 75 tons on a steamboat. Some boats, if you built them in proper shape, would probably carry a little more; it depends on the depth and breadth and the machinery that you have. I know some boats that navigate on that part of the Ohio Eiver — I know nothing much about the upper branches of the upper part of the river. From my standpoint about 2 feet is the minimum depth. The boats I have in mind carry from 150 to 300 tons when loaded. The Government has been doing considerable work on the Ohio Eiver. There has been no dredging done where I have navigated. I know there is work being done on the river by the Government. I know there is 3350 such a thing as the Ohio Eiver Improvement Association and their business is to solicit the general government to improve 1021 the Ohio Eiver in various forms. I think they are succeeding in getting some work done. I went down the Desplaines Kiver on April 28, 1908. Went down in an automobile and crossed the river six or seven times on bridges. I think we must have found six bridges. Mr. J. W. 3361 Woerman was with me and Captain McBride of Louisville. We went down to the mouth of the river, a place where they had a coffer-dam. We did not go down the towpath bank a 3362 part of the way, nor through the Village of Channahon. AVe were on the left bank when we reached the site of the dam, did not cross the river at that point. Was not over where the work has been done by the defendant company. Was not on the river at any time in a boat during that trip. We got out of the automobile opposite the dam and walked down through the fields, I suppose a mile to a mile and a half I suppose that was about a quarter 3363 of a mile from the river. We looked at it the best we could, could see the river plainly there. Q. Your highway that you travelled, came down half a mile or more away from the river and you got out opposite to the point of the river that you went to where the dam is, and you walked across from the river to the highway, is that it? A. Walked down through the field, yes, sir. Stayed on the bank 3364 opposite I suppose thirty minutes. Left Joliet at one o’clock and got back there about half past six. Traveled 15 tol8 miles. That is the examination I made of it. At some places the road was half a mile away from the river, at other places not so far. I suppose about half the distance is within a half mile from where we were going along the road. 3365 Re-direct Examination. I think the locks in Green Eiver were completed in 1835. The improvement was made at the same time on the Barren Eiver. We could see the cofferdam on the Desplaines Eiver from the point where we were on the left bank. We were at the aqueduct. We were right down the river bank at the aqueduct. I cannot recall all the bridges we crossed, elackson street was one, I think, Cass street, Eock Island bridge. I think there is a bridge at the place they call it Brandon’s Eoad; that we crossed. At Treat’s Island 1022 we crossed over on a bridge and came back to the right bank again and there is a bridge below that, Smith’s bridge, and the Mc- Donough, that makes seven. 3367 Q. All of them in Joliet, aren’t they? A. It is right hard to remember all of them. 3368 AVe stopped the automobile on these bridges and viewed the river from these bridges. I don’t think we got out. The Jackson street bridge we did not cross in the automobile; we walked across that bridge, and then returned back to the left bank and walked down to the next bridge and got into the automobile down at the next bridge. Counsel foe Defendant. Q. Did you ever know of steam- boats navigating on such slopes and declivities as the maximum slope and declivity that I stated in my question this morning. A. Xot to my knowledge. Re-cross Examination. Q. You don’t know whether some of the boats that you have known have undertaken slopes of that depth or not? A. I could not say what steamboats have done in some other parts of the country, no steamboats that I have known of or heard of. My navigation has been mostly on slack water. That is easy navigation. Nathan P. Peyor, called on behalf of defendant, testified: Direct Examination. 3369 My name is Nathan P. Pryor. I am forty-two years old and live at Carrollton, Kentucky. My occupation is that of steamboat pilot and master. Have been engaged in the steamboat business about 28 years. Have held a commission as pilot 13 years, as master 11 years. Have navigated steamboats as master or pilot on the Kentucky and Ohio Rivers between Cincinnati, Ohio, and Evansville, Indiana, on the Ohio River, and the mouth of the Kentucky River to Irvine, Kentucky, a distance of 271 miles. Have navigated all kinds of boats, propellors and stern 1023 wheel boats, and side wheel boats and gasoline boats from 30 feet to 300. Have had about a year’s experience with gasoline boats. They were small flat-bottomed scow-bowed stern wheel boats, about 70 feet long by 18; were freight carriers. Have 3371 navigated boats of this description between Madison, In- diana, and Monteray, Kentucky, that is 12 miles on the Ohio and 40 on the Kentucky Eiver, in the past year. Saw Desplaines River on the 17th of this month, between Joliet and the mouth. Q. In your judgment, and based upon your observation that day, state whether in your opinion the Desplaines River between the points where you saw it is a navigable stream? A. I saw a very rapid stream obstructed a great deal by bridge piers, is- lands, and timber, and some rocky shores, and there were rapids in the river and it wmuld appear to me from my river experience that tjiere were obstructions there. At the time that I saw it it was a high stage of water, and I could not tell what these ob- structions were, but there was obstructions of some kind in the river at all these rapid places, that from the indications of the rocks and shores, I would judge there was rock in the middle of the river. I saw it at its mouth where a dam was being built, at Treat’s Island and at Brandon’s Road. We could not get to Smith’s bridge on account of the water. 3373 Q. From your examination of the river, state whether or not in your opinion it is a navigable stream! A. I 3374 don’t think it is. It was too swift to navigate a boat of any kind on from the fact that if you were going down stream and had a stop to make anywhere, I am sure it would be impos- sible to land your boat anywhere. Coming up stream there is no boat within my experience that would stem it. The kind of gasoline boats that I have had any experience with would not start in it. The current is so swift they could not get in the mouth of it. A gasoline boat is not adapted to the navigation of a rapid stream. You cannot put the power on. You put power enough on it to navigate a rapid stream, why then you get 3375 too heavy a draft boat, and they do not develop the power that steam does; they are liable to break down at any time. 1024 Pryor, — Direct Exam. — Continued. In case of a break down with a gasoline boat in a current of that kind, you are at the mercy of the current ; you have got no control of your boat in such a current as that and if you meet any ob- struction of any kind, you would knock a hole in the boat. Gaso- line is not a reliable power in the operation of boats, not by any means. Q. Assume a stream of the following description: begin at a point twenty miles from its mouth, we find a fall of 38 feet in four and a half miles, considerably more than eight feet per mile; the next stretch of three and a half miles, with a fall of 21 feet, with a maximum slope of more than ten feet per mile;* then next fol- lowing a pool five miles long with no fall; then next following that pool a stretch one mile in length with a fall of 9.4 feet and maximum slopes of more than 15 feet per mile; then next follow- ing a pool one mile long with practically no fall; and next follow- ing that pool a stretch of one mile with a fall of 2.7 feet with a maximum slope of about four feet per mile; then next following a fall of two feet in three and a half miles, and then a fall of three feet in a half a mile at the mouth, the bed of the stream being rock; what would you say as to whether or not a stream of that description is navigable. A. I would not consider it a 3376 navigable stream. At various places in that stretch of the river I should say it was impossible to navigate on account of boulders, rocks and islands. Q. Could you navigate a stream which has a fall of 38 feet in fifteen and a half miles, which fall is comprised in a stretch ag- gregating approximately six and one-half to seven miles of the whole fifteen and a half miles. A. I don’t think you could 3378 navigate it with any kind of a boat. I observed the curves and bends in the river. In a crooked river you of course have to make very abrupt turns to get around these bends, and your boat naturally takes what we term a flank; you have to hold close up to the points, and in doing so that current is so strong that the stern of your boat will overtake the head, and turn around, and the first thing you know you are turned around going up stream instead of down. 3379 I would not consider it safe at all to navigate where there are abrupt curves coupled with a narrow channel, 100 feet 1025 in width and a swift water and rock bottom, the fall at such point being 9.4 feet in one mile and a slope of more than fifteen feet per mile. Have never known of anyone navigating a slope of 15 feet per mile. I have warped boats. Don^t believe I could take a boat up the river at Treat ^s Island by warping. 3379 Cross-Examination. I began the steamboat business when a boy fourteen years old. Since I have been a pilot I have been on Kentucky and Ohio Eivers, before that I was on the Mississippi Eiver some. The Kentucky Eiver has been improved' by the Government. I 3381 navigated 210 miles instead of 271 miles. That takes it from its mouth to the bead of slack water navigation at Irvine, Kentucky. There are eleven locks and dams up there in 210 miles. The two that are farthest apart are 26 miles. The two closes^ together, twelve miles. The water is backed up from one dam clear up to the other. It was navigable in a way before this im- provement. As far back as I can remember when I first started at the age of about 14 years, the locks and dams were broken out. They were originally built by the State, and the Govern- ment took charge of the river in 1880, repaired these old dams, and built some new locks and dams, and when I first started, we went through the breaks in these dams, and in the summer when the river would get low, the boats would have to lay up and quit. Whether it was navigable before the State put these dams in or not, I could not say. Prior to the time the general govern- 3382 ment fixed it and after the breaks occurred in the original dams, they were navigable with a small boat towing a barge perhaps six months in the year. It got down to a stage where there was not over 18 inches of water on the shoal places. The boat quit on about two feet. Had one barge to carry freight on, the boat itself was too heavy. She was about 75 feet long and 18 feet wide. She would not carry over 30 or 40 tons. Her 3383 only means of carrying freight was by a tow on a barge. Tobacco was the principal freight. The barge would carry 40 or 50 tons outside of the cask, which would be some five to six tons more. Have navigated the Ohio from Cincinnati to Evansville, about 350 miles. All classes of boats from a small 1026 Pryor, — Cross-Exam. — Continued. boat to a long boat of 300 feet. The 300-foot boat would cany 1,200 tons. From that they have them down to pleasure boats, which do not register any tonnage. The smallest boat that I have ever seen navigated there would possibly carry 60 or 70 tons. They are about 110 feet long, 20 feet wide. When fully loaded they draw about three and a half feet, with about sixty or seventy tons. When half loaded they could not go in less than two feet. They donT operate those boats at times over shoals to that extent with less than two feet of water. I never saw a boat operated on 16 or 18 inches of water, loaded or unloaded. I never heard of it. You cannot operate a boat 110 to 120 feet long, loaded, on 18 inches of water. I never saw it done. Don’t think it can be. They would draw light 18 inches or more. Loaded 3384 with 60 or 70 tons, about three or three and a half feet. Half 3387 loaded, something over two feet. About thirty inches, per- haps not quite so much. The Kentucky River has no navi- gable branches. The Kentucky River is the only side stream of the Ohio that I have ever navigated. There are times of the year when it is much beyond a slack water navigation. One dam backs water to the other one, that is what is meant by slack water navigation. That is true all the way up the Kentucky only at certain seasons. Wlien the water is not very low- 3388 it will give you a current from the mouth. There are times of the year when there is no slack water in the Kentucky River at all, a good portion of the year. I mean that the dams are entirely covered and we very often run right over the top of them. The dams are from twelve to twenty feet high, the lowest twelve, the highest twent}^. The water would be practically level on top of the dam. There is often water enough on top of the dam that a boat goes over it, but it is too swift, you could not push her. You go through the lock on those conditions. We oc- casionally run over the top of the dam. If we find for in- 3389 stance, a boat drawing four feet of water and there is five feet on top of the dam and it is practically level, we go over it. We come down stream over those dams very often when we cannot go uii stream because the current is too swift. Some- times there is a fall at the dam, sometimes not. For instance, we take Number One Dam, which is four miles above the mouth of the river, and it is very often there isn’t but six inches of water 1027 on top of that dam and it is hacked up from the Ohio. Of 3390 course, that is slack water and they can go over without any trouble. If we had water enough to furnish a full level, we would go, but sometimes the river rises or falls, and there are greater falls at one time than there is at another. For instance, the water falls two feet below the dam, while it falls one foot above it, and it raises the same way. When the water is very high in the Kentucky River and you start your boat up at the upper end of navigation and go right down over the dam, there would be enough water so that 3391 there is no fall. The number of feet is uncertain. One can easily go over a dam when he has a foot fall. You might have four or five feet on top of the dam. It is not any risk to go over a drop of a foot, and it is not an abrupt fall of one foot. It is a fall of a foot perhaps in 100 to 400 feet. I have gone down when it was a considerable fall down stream but not up stream. I absolutely never put my boat over a dam when the fall was anywhere from one to three feet in the length of the boat. I can- not say whether I have gone over where the fall was two feet in four hundred feet. We don’t take any gauge of the boat at all, only that we know there is water enough on top of the dam to float the boat. I won’t deny that I have gone down there when the fall was two feet in four hundred. 3393 I was down to see the Desplaines River on the 17th of this month, at the instance of the defendant, for the ex- press purpose of examining it and being a witness. My 3394 home is at Carrollton, Kentucky. I went by rail to Joliet and from there by automobile. J. W. Woerman was with me and the man who operated the machine. We went down the right hand side of the river all the way down. We crossed a number of bridges, but came back. I don’t remember being at Channahon. We were at the site of the proposed dam. AYe 3395 were on the side of the river next to the canal, the right hand shore. We went from a point near the mouth up to Mr. AYoerman’s office. Never went as far as a mile on the tow-- path. YYe walked about a mile from where we left our machine to get down there. We were not along the bank at that time. AYe crossed about eight different bridges. In Joliet, there w-as 1028 Pryor, — Cross-Exam.— Continued. Jackson street, Cass street, Jefferson street and I believe there was the Burlington Eailroad. I would not remember whether Brandon’s road is on a bridge or not. Then we went to the bridge below Treat’s Island. Then we started to see Smith’s 3396 bridge but did not get to it on account of the water. I saw enough of the river to have an intelligent understand- ing of it. The depth of the river I know from what they told me and my own judgment. I had never seen it. Of course, I had to take the other man’s word for it. I cannot say positively how rapid the currents are. I was told the fall per mile but not the current. I don’t know that I could in a scientific way compute the current or the rate of current from the fall of the river. I don’t know how often I have heard the names of 3399 the streets I mentioned in Joliet. I talked pretty freely with Mr. Woerman all the way down and back. I was pres- ent in the room when the last witness. Captain Bewley, was being examined. The gasoline boats I mentioned ran from Madison, Indiana, to Monterey, Kentucky, 12 miles on the Ohio and 40 miles on the Kentucky. They carried about 15 to 20 tons. One of them is 65 feet long, 16 feet wide, 44 feet deep; the other 70 feet long, 18 feet wide and 34 feet deep. That is the depth of the hold of the boat. A boat 70 feet long, by 18 feet wide, pos- sibly could navigate on about two feet of water. The other boat would draw more water. They would carry about the same ton- nage. I operated these boats at ditferent times about a year. They ran both in the winter and summer, as regular freight car- riers. They carried tobacco, poultry and eggs and wheat and passengers, miscellaneous freight. I understand what is meant by corded ing. I never did any cordelling. The other name you apply to a boat when you push it over is warping, that is, sparring. I have used that method. That is where you ground in shallow water. Sometimes you lift the boat up and sometimes you push it over. If you want to lift, you ought to have two spars, one on either side, and set those spars straight in the water, resting on the bottom of the 3402 river on each side of the boat, and have a block and tackle from the top of the spar that runs down through a block on the deck of your boat, and take this line around the cap- 1029 stan, and you lift tlie head of your boat up off the bottom, and then to move it they will take a yawl or lifeboat and run ashore and make a line fast and take .it around the capstan and trip those spars. That makes the boat jump ahead. All large boats that operate on the Kentucky and Ohio Kivers carry spars ready for this kind of emergency. The gasoline boats do not, 1 never knew one to need them. The gasoline boats are stei'nwheel. I understand what is meant by warping a boat. I have had to do that in my work. I never warped a steamboat or gasoline 3403 boat. I have warped a barge. To warj) a barge, you ])ut a line out to the shore, to a tree or anything that will hold, and then you bring your line back to your boat and run it through a block or pulley of some kind, and on to a line that runs fore and aft on your boat from a given point, a ])oint ahead of the boat to the point forward of the stern. Attach a line to that and take it to a windlass and pull up by it. Sometimes they do away with the sideline and ])ush over with poles. Whenever we have a steamboat and a barge togetlier we never warp. It is only when we have a barge alone. There is no power. Warp- ing is nothing but an ordinary line that you carry all the time, and you can rig up a windlass by hand. The towboats never have to warp. When the river gets down to that stage, all 3404 the towboats quit. It is very seldom that towboats quit oir the Kentucky Eiver and on the Ohio it is irregular. They have been running pretty steadily for the past four years. They have simply had more water. Up to four years ago, the tow- boats and their fleets would have to lie up and wait for weeks at a time before they could take them down the river. They generally waited about Pittsburgh or at points below there. They arranged their work so that they can get their boats all back to that point before the low water comes. Sometimes it is months. They use a few gasoline boats around Madison, Indiana, for towing light barges. They do not push much. On those light barges they carry wheat and posts. 3405 Re-direct Examination. When I say I do not know the current of the Desplaines Kiver, I mean that I do not know the velocity of it, how many miles it runs. I observed the current of the river from quite a distance 1030 along the road. On a rock bottom stream, they never sparred boats as I mentioned. They sometimes push them over one way or other, where they know the bottom is level. I have not seen gasoline boats used for commercial purposes smaller than those mentioned. 3406 Thomas Aijstih Mills, called as a witness for defendant, testified: My name is Thomas Austin Mills. I live in Will County, Illi- nois, have lived there 57 years. Born there in 1850. Have lived those years in Township of Channahon, right east of Treat’s Island, about 20 rods from the Desplaines River. I think my father came there in 1848 or 1849. He owned and cultivated some farm land there. Treat’s Island was a part of the prop- erty that my father owned at the time I was horn. I think my father died June, 1853. My uncle operated the farm after that. I am a farmer. I farmed the same land my father did at Treat’s Island. A few weeks ago I sold the island. I owned it ever since my father died and it has been cultivated all that time. Raised wheat and corn. There is about 74 acres in the island, 65 of it belonged to me and it is about a mile long. I remember at one time of there being a dam and a mill on Treat’s Island. The mill was running quite a number of years, when I was a boy. It was just below where the road is now; it was on the island. On the east channel of the river. The dam was near the upper end of the island. On the west channel the dam was 3409 a little further down. The dam was about 80 rods above the mill on the east channel. (Witness indicates on map (Zarley Exhibit 1) the location of dam at the head of island.) The left hand channel going down stream is the east channel. The dam across the west channel was from Treat’s Island, about where the mill race crosses Treat’s Island. I am living 3411 there still. I am cultivating the farm not on the east side of the river but back from the river. The mill was right at the point where the mill race empties into the east channel and the dam was about 80 rods above that. I recall the dams and the mill ever since I can remember anything. It was a saw 1031 mill and it was in operation when I was a boy. The dam 3412 across the east channel did not effectively block the stream at that point. I think the mill was operated np to just before the war, about ’58 or ’59. The dams remained there for quite a long while thereafter, probably three or four years. The mill ceased because there was not any more timber for sawing. They got timber from the country round about there. In 1871 when the Deep Cut was made connecting the river with Lake Michigan, the water was low most of the time in the spring of the year. We most always had a freshet. We had high water in the spring and very low water all winter. The freshets would not last a month or so. After them the river kept going 3414 down gradually. If it was a dry summer there would not be much water in it the latter part of the summer. There were places where there would not be over three or four inches of water. On either side of the channel, I have walked across there many a time without getting my feet wet, stepping from one stone to another. We never had any freshets to interfere with putting in the crop, and we generally had our corn planted in May. TEe high water season was here then. From that time there was very little water in the river. Sometimes there would be a heavy rain in the summer that would raise it and it 3415 would go down again in a few days. With the exception of these occasional freshets lasting for a few days, the gen- eral condition of the water during the entire summer season was that there was about five or six inches of water. The river had a fence across it, just above the mill race, on the east chan- nel, as long as I can remember, up until about 1871 and we got high water there and they did not build the fence any more. It was usually a post and rail fence. I maintained it prior to 1871. The fence would remain there from spring until spring, unless we had high water. Generally when the ice went out in the spring it would take the fence with it, and then we would build it up again after the water went down. It had to be renewed every spring after high water and it would remain until the next spring, unless we had high water. I have built it a 3417 good many times. The bed of the stream is rocky. There are boulders in it, granite boulders, four or five feet across. Quite a number not as large* as that but there are very numerous 1032 Mills, — Direct Exam. — Continued. smaller ones. There were boulders all the way up from the upper end of the island down to the lower end of the island. They were here and there, scattered along all through the channel, on both sides of the island. They would be exposed six or eight months in the year. There were not so very many large ones, but the ordinary size boulder as large as a foot or two in diam- eter. There were plenty of those. I have walked across the stream a good many times and stepped from one boulder to 3419 another and did not get my feet wet. I could do that' in the winter time and in the summer time. The cattle did not cross over the island, we had a fence around the island. They could get across anywhere. I think the first bridge was built over to the island in 1894. Before that, we had to ford it. We drove right across with teams and farm imple- ments. Sometimes the water would be a foot or two deep and sometimes not so deep as that. I have seen the water on the riffles in a place there where it was not over four or five 3420 inches in depth. The riffles are where it is scooping out, and then it would be high and the water runs over there and below that there would be a big pool. There were pools and riffles all the way down the length of the island. I do not believe there was a month of the year that some of the boulders would not be exposed. A good deal of the time you could get up and over the riffles on Treat’s Island with a skiff but you would have to get out and pull the boat over the riffles. What I call the riffles are little places where the stones are washed up and the water is shallow and below that there would be a little deeper water, but you would have to pull your boat up there for a long ways. I have had to pull boats up there where I had to pull, — about ten or twelve rods at a time. Then there would be a pool 60 or 100 rods long, in the east channel. Below that there was another stretch or riffles; I don’t know how long, about 20 or 30 rods. 3422 I used to get out and wade and pull the boat over. The west channel is about the same, only there are not as many of these riffles as in the east channel. The riffles extended just a little way below the island. When the Avater was deep you loa:] could take a skiff up there; that would be in the spring of 3423 the year. Sometimes in the summer after we happened to have a heavy rain in the spring, you could float a boat without dragging it, for about a month or so. It would begin generally in March and April. That would he the only time in the year unless it rained. AVlien we had summer freshets, 3424 it would last a week or so. I have used the river with a rowboat, since 1871. I have not been up or down over the riffles on Treat’s Island since 1871. The current is too rapid there now. It has been so rapid that you could not navigate a row- boat since 1900. The current has been swifter because the Sani- tary District has turned more water in there. A rowboat has been taken up through either of these channels, but I never did it. I don’t want to try it. Comparing the condition of the stream with the condition before 1871, we would consider it a flood right now. We very seldom got headwater as high as it is now. We called it high water. The banks were not flooded. 3425 If the water was as high now as it used to be, we consid- ered it high water. Of course, once in a while it would get up on the land on the island. I never saw the island covered with water but once and that was prior to 1871; it was in 1865. The effect of opening of the Deep Cut in 1871 was that there was very much more water coming through and it had the effect of covering the lower land and washing out the channel. The channel was considerably wuder than it was. The current was more rapid. After 1871 up to 1900 the current was not as rapid in the summer time. In the spring of the year it would be, but in the summer time there was grass that grew up in the bed of the river and sort of dammed the water back, and it did not flow as rapidly, but when the channel was cleared it was pretty rapid. 3426 My house was about 20 rods from the river. I could see the river every time I was outside the house. I crossed it almost every day, two or three times. We had our crops over there. We had to farm them and get them out in the fall. Going to school for three years I crossed there during the summer time, from March until it got cold weather in October. The school was at Channahon about three and a half miles on the other side 1034 M ills, — Direct Exam. — Continued. of the river. We got our family supplies at Channahon 3427 sometimes from Joliet and Wilmington. I had occasion to go to Channahon for supplies when a hoy. I forded the river, drove across with the team. I have walked across. I never knew of any navigation on Desplaines Eiver; never knew of any boat having been taken up or down stream or carried down stream, carrying on any kind of commerce. I know there could not any boat of any size be taken up that river at any time dur- ing my lifetime, and not now either. 3428 1 am familiar with the river below Treat’s Island. I have crossed the river at Brandon’s bridge. Have seen it nearly every week. I have seen the river near Brandon’s bridge before 1871, perhaps once a month. I saw the river below Treat’s Island before 1871. There were some boulders below Treat’s Island. I crossed at just about where the Smith bridge is now, perhaps 20 rods above it. There was a stretch of riffles there, and quite a good many boulders. The boulders are not 3430 exposed now, they were at that time. They were exposed in the summer season. That was at Smith’s bridge. There were a good many boulders all the way between there and Joliet. At Brandon’s road I think there was a drop there of a quarter of a mile. I have been down the river as far as the mouth a few times. The boulders in the stretch I have described were scat- tered, some of them were out in the middle and some near the sides. I have had to get out and shove over the boulders lots of times. 3432 The place where my house is is called Millsdale. There is a bridge crossing the Desplaines Eiver there. There used to be a ford right opposite the house, just above one of those 3433 riffles, we called them riffles. The riffles were pretty rapid; there were several large boulders in there so we used to go above those boulders and when the river was high, we generally had a mark, we could tell when a certain boulder was cov- 3433 ered with water it was not safe to cross. This ford was about 80 to 100 rods down the river below the head of Treat’s Island, and there was riffles all the way up; there would be a riffle, and then there would be a little place where the water would be deep. The water in this ford during the summer sea- 1035 son was about a foot or so deep. It would be deeper in the ford than it would be on the riffles. It was not deep enough to do any harm; you could drive clear through there because it was smoother. Some of these boulders along Treat ^s Island would weigh about a ton or more, two or three feet high. There 3435 was a boulder above that ford that is five or six feet across the top and I presume it was three or four feet high; it was near the center of the channel. On the east channel there is two different places that I have crossed by stepping from boulder to boulder, one just below this ford, and the other one at about probably 50 rods up the river. I never did cross below the rapids that way. Have seen the Desplaines Eiver near its mouth many times. Since the Santa Fe railroad was built in 1884 or 1885, I have been up over that road 25 or thirty times a year. I have seen the river when there was not any 3436 water in it scarcely at all. In front of the depot at Lemont is a solid rock bottom, and I have seen it there when the water did not scarcely run. I donT suppose there was two to three inches of water there. I have seen it in that condi- 3437 tion a good many times, generally in the summer. When we have a freshet, it would take some litle time for it to run down. There at my place you could ford the river in two or three days after a freshet. Prior to 1900 I have never known of a week that I could not ford the river. Cross-Examination. I lived on the place all my life. Was in Chicago two or three years but was back and forth all the time. Channahon is a little river town on DuPage Eiver. I don’t think there is over 100 people there. The school I attended was a high school; went there about three years, commencing in the fall of ’68. 3439 I remember Grant running for the presidency in 1868; re- member when Grant took Eichmond. I distinctly remember when my father died. I was about three' or four years old. I remember the old saw mill and I remember riding on the car- riage that carried the logs. The logs were on the bank and they rolled them in and were put on what I called a carriage, it was an up and down saw and carried the logs against the saw. I 1036 Mills, — Cross-Exam. — Continued. don’t remember how long the mill was, it was a wooden one stoiy affair. There was a slope so they could roll the logs down onto the carriage. The dam was built of logs, a log j)laced here and there and then slabs put back and stones piled up on the bottom of those slabs. I don’t imagine the dam was over 3442 three or four feet high. They used some of those boulders. I have seen the water pour over the top of the dam; it is quite common in the spring time. The water would not stand in a pool behind the dam; there was too much fall. Above the dam was Lake Joliet. The water behind the dam would be held- back four feet deep. That dam was across the east channel, and there was another one across the west channel and a little far- ther down. One of those dams between the main island and the little island, a small part of it, was built in that same way, 3444 and the balance of it was just boulders in there. The dam between the small island and the large island, started at just about where this millrace starts in. It must be four or five rods below the end of the island. The center of the dam was a little further down stream than the two ends. (Witness 3446 indicates on map the location of dam.) There is a strip of land between this millrace and the river, I should judge about three or four yards wide, and the river is so much wider now because there is a good deal of it washed away. I can show you where the old millrace was if I should go down there. 3447 There was a dam right here near where they run that grist mill. I don’t know whether they had any dam on the other side or not, I should judge perhaps they did not. (Witness indi- cates on map location of grist mill and dam.) The grist mill was a much older mill than the saw mill. I don’t remember any- thing about the grist mill only the ruins and the mill stone I have seen. If I saw a statement in Woodruff’s History of Will County that in 1837 there was a grist mill on the east side of Treat’s Island, I would take it to refer to this mill. I don’t think it was washed out. I think it went into disuse and tumbled down and perhaps it was carried away; I don’t know. It 3449 was all gone before I came upon the scene. The dam was not entirely obliterated; there was a part of it left there. There were some boulders all along there. 1037 Q. You spoke of this first dam being in three sections, one across the east, and then one across the middle, and then across the west channel. A. Yes, sir. But I didn’t speak about this little millrace that ran down to the grist mill. Of course, they liad the dam there too. The dams across the east and across the west channel were made by laying some logs crosswise of the stream and putting slabs heind these, then piling the boulders on the slabs. In the middle it was made by simply gathering the boulders together, a portion of them. The water would work its way through the mid- dle channel some. The millrace was artificially made by digging out the ground, probably twenty or thirty feet wide. I saw 3451 the water run in there bank full and run over on each side. When the water run over the top of the dam, if the dam was four feet high, of course it would be four feet behind. There was a good deal of the time when it didn’t run over it, only in high- water. And then there would be considerable time when it would stand about level with the top of the dam; it would run over the top of the dam only for a short time. When it ceased to run 3453 over the top of the dam, the water would not stand full to • the top of the dam. There was a great deal of the water seeped through ; the dam was not very tight. It was not well built as they build dams now. What you call a mill pond is Lake Joliet : some places in Lake Joliet there was twenty feet of water. The object of the dam was to raise the water enough so they could run water through this mill race to run the mill. The bridge marked on the map near my house is an iron bridge with a stone abutment at each end. It was put in, I think, in 1895. My house is 30 or 40 rods from the Millville Station. I never carried on the mill. I don’t think they run that mill 3455 later than 1859 or 1860. I don’t remember that the dam was washed out and that they replaced it more than once before they stopped running the mill. It was not washed out at once; I think it was washed out gradually. I didn’t see them building any dam. I presume it was by gathering boulders together. 3456 My business has been stock raising, farming, and I was in the tile business a few years, manufacturing tile at Mills- ville. I employed about eight or ten men making drain tile, com- 1038 Mills, — Cross-Exam. — Continued. menced about 1883, stopped somewhere about 1885. My maiu business was farming. 3458 I made a contract to sell the island to Mr. Charles E. Munroe, March 5, 1904. Upon his paying the purchase price within four years he was to have the property; he did that and I transferred the property to him a few weeks ago, or to the Econ- omy Light & Power Company, the defendants. I came up to testify at their request. Don’t think I ever talked about the dams until just the last day or two. Don’t think I have any talk with Mr. Munroe about the river, even until just recentlv. I don’t know the horse power of the sawmill. I don’t know what kind of a mill it was. It must have been a sort of a turbine wheel. The wdieel was down in under the mill, and I think a vertical 3460 shaft went down from the mill into the wheel pit. I think the mill was there before my father was interested in tha place. There was a good portion of the year when there was not water enough to run it; in the winter time and only a little while in the spring, I guess, they could run it. To build the fences described, we took rails and flattened off the ends and drove the posts down in the bed of the river and spiked those rails on to those posts, the same as you would a 3461 board fence, only using the rails instead of boards. The ice would carry the fences out and they would put in new ones. In the west channel I have crossed by stepping on boulders at a point just a few feet below the bridge. (Witness indicates point on map.) I have also crossed it just above the bridge. There 3462 was a ford right here where the road comes down to the river, but it went out on the other side below the bridge. The ford was smoother than on either side where the boulders were. There were small boulders all the way up the stream to the upper end of the little island; above that, it begins to get deep, and I have waded up there, 20 or 30 rods, and there was not more than a foot or 18 inches of water, sometimes in the summer. I never went in up at the upper end of Treat’s Island, it was too deep. I never learned to swim. Up above Treat’s Island 3464 there was about 22 inches of water. There were boulders all along the channel of that river, as far as T have ever been. 1039 and I have been wading up and down that river from the upper end of the island to the lower end. On both channels, it is just the same. 3466 I do not know personally that there were boulders in the west channel above the upper end of the little island because the water was too deep. I didn’t hunt for them. (Witness marked on map location of boulders ‘O^-prime.”) There were bould- 3469 ers down 12 or 15 rods below the end of the island, below the rapids, until you came to deep water. Then there is a stretch of deep water there for a mile or more with boulders all the way down to that deep water, and I presume there are boulders in there. I refer to the same thing by the words, rapids, ripples and riffles. I would call it a riffle or a rapid where the water drops and goes down pretty rapid, and then it will come to a little place where there will be a little pool, the water will be deeper, maybe three or four feet of water there, for just a little ways; then you will find another raise in the ground and the water runs over that* rapids, runs down still a little lower. There is a fall, as I under- stand it, of about eight feet between the upper end of this island and the lower end, so that it is not all in one place. It gradually drops, and near the upper end is more of a drop than there is over this point here from below, where the old mill was, to almost the lower end of the island. There is not very much of a drop there. 3472 A little ways below the saw mill it did not run there. There was a gradual flow and there were no riffles there. Then when you get down almost to the lower end of the island, 20 or 25 rods above the point of the island, it begins to drop again and the water runs very rapid there till you get about that distance below the island. 3473 At the upper end of the island, from where the old dam was there is quite an incline to down about just below the grist mill. I didn’t say I crossed those old boulders at the old dam, I crossed it right in here somewhere (indicating). About that point I have crossed there dry shod, stepping from one stone to another. There were not great big boulders. If there were 2 :>laces between it that I could not step; I would stoop down and pick up a stone and throw it down there and make a step. You 1040 M ills, — 'C ross-Exam. — Con tin ned. could move the stones into stepping stones. I have crossed there perhaps 50 times in my lifetime. When there was not a stone near enough, I would roll one up from the channel into the place, so as to make a passage, and when I crossed again if there was a gap, I would roll another. I presume other people did the same. In the ripples at the other end of the island, the drop begins near the upper end, since the dam is out it is rapid all the way down. After you get to a point where the old dam was, it begins to be more rapid, more of a fall, and the water comes down there faster than you can walk, all the way down. (Witness indicates on map where riffles in east channel begin.) You might call it a 3477 riffle all the way down. The water will go down there and then there will be a little quiet spot and then it will go again. When you get to this ripple, twenty rods above the bridge, that continues just below the bridge. There is where the little pool is, from about a point say twenty rods above the bridge, down to just a little below it, the water would not run as rapid, and from that point on down below the ford, twenty or thirty rods more there is another rapid place, quite a drop there. Then from that point on down to near the lower end there is not very much fall. 3478 The ripples on the west channel commence at the upper end of the little island and it is all the way down to the bridge, below the bridge, about fifteen or twenty rods. It is not so rapid tiien until you get down to near the lower end of the island, then there is a drop. The ripple on the west channel as it passes the extreme tip of the lower end of the island merges in with the ripple from the east side, and they both run out together, about 3479 fifteen rods below the point of the island; then there is quiet water from there on down. The water overflowed the whole of Treat’s Island in 1865. I do not remember how it was in 1867. AVhen the deep cut came down there used to be boulders exposed in the winter time. Since the 0 ))ening of the Sanitary District in 1900 there is one boulder that is exposed every once in a while, that is about where the old mill race was. I think I have seen that boulder exposed since they shut off the water. When the water goes down to its normal condition, the same as it is flowing 1041 every day, sometimes there is more water one day than there is another, then I can see the bonlder. 3481 Millsville is a station on my farm on the Santa Fe. I see the river at Lemont from where the railroad crosses. I never made any further examination. Re-direct Examination. 3483 I closed the sale of Treat’s Island to the Economy Light & Power Company in March, 1908. I don’t rememer when I first talked to anybody with a view of testifying in this case. Mr. Kercheval came down to my place just a few weeks ago and asked me to come up here. I think it was after I had closed the sale. It was about the time this trial commenced. Nothing was said before the sale was closed about my being a witness. I could get a good view of Desplaines River from the car window at Lemont. The river is right up to the embankment. The railroad runs right alongside of the river. Before the Sanitary District diverted the course of the river it came right up by the depot. I should judge the railroad run alongside of the river nearly half a mile. In look- ing out of the car window I was not able to see much of the water ; it wasn’t there. I^could see the whole width of the river for about* half a mile, perhaps not so far; I couldn’t see any water except just in little places. I didn’t see any running water. James Cornelius, a witness called on behalf of defendant, testified: 3485 My name is James Cornelius, live in Village of Wilmington at present, on the Alton road. Have lived there since two years last January. Lived on a farm in the town of Channahon in the southwest corner all my life before that. Came there when I was 3 years old. I am 63 now. That farm is right on the south bank of the Desplaines River, I should say about a mile and a half or two miles above the mouth. Two and a half or three miles northeast from the township line. I knew of a dam across the river near its mouth at the place called Dresden Heights. I should judge it was about twenty rods below the county line, in the Desplaines River. About a quarter 1042 Cornelius, — Direct Exam, — Continued. of a mile above the mouth of Desplaines Eiver. I saw it first when I was a small boy, eight or ten years old. There used to be a saw mill there at that dam. There is some of it there yet; it has been washed out by degrees. I think there was a saw mill there when I first saw it. If I recall right, it was sawing lumber when I first saw it. I suppose it was a wooden dam. It stretched clear across the river, probably two and a half or three feet high. It remained there about fifteen years after I first saw it. I o488 have had occasion to observe the condition of the river all along time and time again, from the mouth up, ever since I moved there. I am speaking of the river near its mouth. We used to cross it below this dam, used to ford it prior to 1871. There were boulders all through it at what we call the bend. Dead Man’s Hole, below the dam. The boulders extended probably twenty rods along the drift, what they call the rapids, from the dam down. There was deep water there above the dam. There were no bould- ers exposed above the dam. If I recollect right, the boulders were scattered all the way down below the dam, about twenty or thirty rods. They ran, I guess, from 6 inches to 2 feet, some of them, in diameter, through. Some of them maybe more. There were quite a few. They were scattered through the channel. 3491 You would have to dodge around those boulders with a skiff. You could see the river from our house. Never saw boats, except rowboats, going up and down. Never heard of any boats carrying any kind of commerce or produce going up and down. Nothing but some trapper, setting traps, or something like that. That would be a common rowboat. It would be going up and down, both. Cross-Examination. 3495 I have been living at Channahon and farming from 1848 to 1906. The dam was about two miles from where I lived. 1 never got out and climbed on what was left of the old dam. There was a ruin of an old mill on the other side of the river. I never saw it in operation. I was in the room when Mr. Mills described the construction of the dam at Treat’s Island and heard him describe it. I think this dam was put in in the same way as the other, with slal)s put on it, and scraped up underneath, ancl I 1043 put on top. The water used to i)our over the remnant of the dam most of the time ; in low water it used to go down in what we call the tail race. The dam was gradually washed away until just the riffles were left. The washing away began as far back as I can remember. It was substantially all out fifteen years after I first saw it. This Dead Man’s Hole was kind of a whirl hole, I never was in it. They used to swim in the aqueduct. There used to be an aqueduct in the feeder. The water there was 44 to 5 feet deep. I never knew them to go swimming in the river, the ciqueduct was too handy. I learned from my father that the boards in the floor of the house were made at the old mill. I recall helping him to draw lumber from there when I was a boy. I think the house was built the same spring w^e moved, when I was tliree years old. Afterwards we hauled lumber for the fence: that was when I rode with him, maybe five or six years after. Re-direct Exa min at ion. 3499 I do not recall the boys swimming in the river below the old dam. I don’t think there was water enough to cover them part of the time, , without they would go in these holes, like Dead Man’s Hole. I have forded the rapids above there when it was just sifting through the boulders down around the rapids. Scarcely any water at all, and then I forded it when it was deep in case of rain. After the spring freshets the usual condition of the river was kind of riffly* In some places it would run through a little crevice, just sifting down; that would be, I should judge, say twenty rods above the dam. 3)502 Counsel for Defendant. I will read something from Parkman, which I wish to introduce. I read from pages 406 to 408 from Parkman ’s LaSalle and the Discovery of the Great West, being the summary of Parkman as to the c’ aracter of La- Salle : ‘‘Thus in the vigor of his manhood at the age of forty-three, died Eobert Cavalier de la Salle, without question one of the most remarkable explorers whose names live in history. His faithful officer Joutel thus sketches his portrait: ‘His firm- ness, his courage. Ills great knowledge of the arts and sciences, which made him equal to every undertaking, and his untiring energy, which enabled him to surmount every obstacle, would 1044 Extract, — Parkman's LaSalle. — Continued. have won at last a glorious success for this grand enterprise, had not all his fine qualities been counterbalanced by a hauti- ness of manner which often made him insupportable, and by a harshness toward those under his command which drew upon him an implacable hatred, and was at last the cause of his death.’ ” This is the end of the quotation from Joutel. J1503 ^‘The enthusiasm of the disinterested and chivalrous Chain- plain wasmot the enthusiasm of LaSalle; nor had he any pan in the self-devoted zeal of the early Jesuit explorers. He be- longed not to the age of the knight-errant and the saint, but to the modern world of practical study and practical action. He was the hero not of a principle nor of a faith, but simply of a fixed idea and a determined purpose. As often happens with concentrated and energetic natures, his purpose was to him a passion and an inspiration; and he clung to it with a certain fanaticism of devotion. It was the offspring of an ambition vast and comprehensive, yet acting in the interest both of France and of civilization. Serious in all things, incapable of the lighter pleasures, incapable of repose, finding no joy but in the pursuit of great designs, too shy for society and too reserved for popularity, often unsympathetic and always seeming so, smothering emo- tions which he could not utter, schooled to universal distrust, stern to his followers and pitiless to himself, bearing the brunt of every hardship and every danger, demanding of others an equal constancy jointed to an implicit deference, heeding no counsel but his own, attempting the impossible and grasp- ing at what was too vast to hold, — he contained in his own complex and plainful nature the chief springs of his triumphs, his failures and his death. 3504 It is easy to reckon up his defects, but it is not easy to hide from sight the Koman virtues that redeemed them. Be- set b^^ a throng of enemies, he stands, like the King of Israel, head and shoulders above them all. He was a tower of ada- mant, against whose impregnable front hardship and danger, the rage of man and of the elements, the southern sun, the northern blast, fatigue, famine, disease, delay, disappoint- ment and deferred hope empty their quivers in vain. That very pride which, Coriolanus-like, declared itself most sternly in the thickest press of foes, has in it something to challenge admiration. Never, under the impenetrable mail of paladin or crusader, beat a heart of more intrepid mettle than within the stoic panoply that armed the breast of LaSalle. To esti- mate aright the marvels of his patient fortitude, one must fol- low on his track through the vast scene of his interminable journeyings, — those thousands of weary miles of forest, marsh 1045 and river, where, again and again, in the bitterness of bajBfled striving, the untiring pilgrim pushed onward towards the goal which he was never to attain. America owes him an enduring memory ; for in this masculine figure she sees the pioneer who guided her to the possession of her richest heritage.” I also introduce page 276: 3505 ^‘Chapter XX, 1681-1682. Success of LaSalle. His follow- ers — The Chicago Portage — Descent of the Mississippi — The Lost Hunter — The Arkansas — The Taensas — The Natchez — Hostility — The Mouth of the Mississippi — Louis XIV. Pro- claimed Sovereign of the Great West.” That is the chapter head on page 275. I begin reading at the bottom of page 276, the page heading being 1682: ‘^On the 21st of December, Tonty and Membre set out from Fort Miami with some of the j^arty in six canoes, and crossed to the little river Chicago. LaSalle, with the rest of the men, joined them a few days later. It was the dead of wdnter, and the streams were frozen. They made sledges, placed on them the canoes, the baggage, and a disabled Frenchman; crossed from the Chicago to the northern branch of the Illinois, and filed in a long procession down its frozen course. They reached the site of the great Illinois village, found it tenant- less, and continued their journey, still dragging the canoes till at length they reached open water below Lake Peoria.” 3506 Again, in Chapter 21, beginning on page 289, the chap- ter heading being ^Whapter 21, 1682-1683. St. Louis of the Illinois. Heading from page 299, the heading at the top of the page being ‘M683”: ‘‘Again, on the fourth of June following, he writes to La Barre, from the Chicago portage, complaining that some of his colonists, going to Montreal for necessary supplies, have been detained by his enemies, and begging that they may be allowed to return, that his enterprise may not be ruined.” Also, on page 21, as follows: 3508 “After leaving the priests, LaSalle went to Onondaga, where we are left to infer that he succeeded better in get- ting a guide than he had before done among the Senecas. Thence he made his way to a point six or seven leagues dis- tant from Lake Erie, where he reached a branch of the Ohio, and, descending it, followed the river as far as the rapids at Louisville, — or, as has been maintained, beyond its con- fluence with the Mississippi. His men now refused to go farther, and abandoned him, escaping to the English and the Dutch; whereupon he retraced his steps alone. This must 1046 Extract, — Parkman’s LaSalle.— Continued. have been in the winter of 1669-1670, or in the following spring; unless there is an error of date in the statement of Nicolas Perrot, the famous voyageur, who says that he met him in the summer of 1670, hunting on the Ottawa with a party of Iroquois. 3509 But how was LaSalle employed in the following year! The same memoir has its solution to the problem. By this it appears that the indefatigable explorer embarked on Lake Erie, ascended the Detroit to Lake Huron, coasted the un- known shores of Michigan, passed the Straits of Michili- mackinac, and, leaving Green Bay behind him, entered what is described as an incomparably larger bay, but which was evidently the southern portion of Lake Michigan. Thence he crossed to a river flowing westward, — evidently the Illi- nois, — and followed it until it was joined by another river flowing from the northwest to the southeast. By this, the Mississippi only can be meant; and he is reported to have said that he descended it to the thirty-sixth degree of lati- tude ; where he stopped, assured that it discharged itself not into the Gulf of California, but into the Gulf of Mexico, and resolved to follow it thither at a future day, when better provided with men and supplies. 3510 The first of these statements, — that relating to the Ohio, — • confused, vague, and in great part incorrect, as it certainly is, is nevertheless well sustained as regards one essential point. LaSalle himself, in a memorial addressed to Count Frontenac in 1677, affirms that he discovered the Ohio, and descended it as far as to a fall which obstructed it. Again, his rival, Louis Joliet, whose testimony on this point cannot be suspected, made two maps of the region of the Mississippi and the Great Lakes. The Ohio is laid down on both of them, with an inscription to the effect that it has been explored by LaSalle. That he discovered the Ohio may then be regarded as established. That he descended it to the Mississippi, he himself does not pretend; nor is there reason to believe that he did so. 3511 With regard to his alleged voyage down the Illinois, the case is different. Here, he is reported to have made a state- ment which admits but one interpretation, — that of the dis- covery by him of the Mississippi prior to its discovery by Joliet and Marquette. The statement is attributed to a man not prone to vaunt his own exploits, who never proclaimed them in print, and whose testimony, even in his own case, must therefore have weight. But it comes to us through the medium of a person strongly biased in favor of LaSalle, and against Marquette and the Jesuits. Seven years had passed since the alleged discovery, and LaSalle had not before laid claim to it; although it was a matter of notoriety that during five years it had been claimed 1047 by Joliet, and- that his claim was generally admitted. The correspondence of the governor and the intendant is silent as to LaSalle ^s having penetrated to the Mississippi, though the attempt was made under the auspices of the latter, and his own letters declare; while both had the discovery of the great river earnestly at heart. J^he governor, Frontenac, LaSalle’s ardent supporter and ally, believed in 1672, as his letters show, that the Mississippi flowed into the Gulf of California ; and, two years later, he announces to the minister Colbert its discovery by Joliet. After LaSalle’s death, his brother, his nephew, and his niece addressed a memorial to the king, petitioning for certain grants in consideration of the discoveries of their relative, which they specify at some length; but they do not pretend that he reached the Missis- sippi before his expeditions of 1679 and 1682. This silence is the more significant, as it is this very niece who had pos- session of the papers in which LaSalle recounts the journeys of which the issues are in question. Had they led him to the Mississippi, it is reasonably certain that she would have made it known in her memorial. LaSalle discovered the Ohio, and in all probability the Illinois also ; but that he discovered the Mississippi has not been proved, nor, in the light of the evi- dence we haye, is it likely.” On page 24 there is a footnote 1, being the footnote follow- ing the paragraph which I read, which sets out the journey in 1669 or 1670, in which he states that he came to the southern por- tion of Lake Michigan and crossed to a river flowing westward^ evidently the Illinois. 3512 ‘‘Fig. 1. Seymour. — After stating as above that he en- tered Lake Huron, doubled the Peninsula of Michigan, and passed La Baye des Puante (Green Bay) says: II reconnut une baye incomparablement plus large; au fond de laquelle vers I’ouest il trouva un tres beau havre et au fond de ce havre in et louve qui ca de o’est a I’ouest. II sar suivet ce fleuve et estant parvenu jusqua-environ le 280me degre de longitude, et le 39me latitude il trouva un autre fleuve qui secjoignaut au premier coulait du nordouest au sudest er il suivet ce fleu ve jusqu-au 36me degre de latitude.” “Tres-beau havre” may have been the entrance of the Eiver Chicago, whence by an easy portage he might have reached the Hesplaines branch of the Illinois. We shall see that he took this course in his famous exploration of 1682. “The intendant Palon announces in his dispatches of that year that he had sent La Salle southward and westward to explore. ’ ’ 1048 Extract y — Parkman’s LaSalle. — Continued. 3517 Counsel for Defendant (Reading): ‘lAgain, his rival. Louis Joliet, whose testimony on this point cannot be sus- pected, made two maps of the region of the Mississippi and the Great Lakes. The Ohio is on both of them with the in- scription to the effect that it has been explored by LaSalle. One of these maps entitled, ‘Carte de la decouverte du Sieur Joliet, 1674.^ Over the lines representing the Ohio are the words ‘Route do Sieur De La Salle pour alJer dous le Mexique.’ The other map of Joliet’s bears also written over the Ohio the words, ‘Riviere par ou descendit Le Sieur de La Salle, au sautir du lac Erie pour aller daus le Mex- ique.’ I have also another manuscript map made before the voyage of Joliet and Marquette apparently in the year 1673 on which the Ohio is represented as far as to a point a little below Louisville, and over it is written, ‘Riviere Ohio Auisy appellee par les Iroquois a cause de sa beaute par ou le sieur de La Salle ests descend!.’ The Mississippi is not represented on this map, but — and this is very significant as indicating the extent of LaSalle’s exploration of the fol- lowing year and summer of a part of the upper Illinois as laid down.” There was also read from Schoolcraft’s Travels Up and Do^s-n the Mississippi, published in 1825, describing a journey during 1821. Chapter 15, beginning on page 313, the author is at Peoria Lake. From page 316: 3521 “AYe pursued our voyage without iiiteiaiiption from the Rapids and without detention from settlements. There were no white habitations between Fort Clark and Chicago, nor would a traveller be led to presume from the present appear- ances that the French had built forts and erected chappels in this region of the country more than one hundred years ago. It is not certain where Fort Creve-cauer stood though it appears probable it was near the lower part of Peoria Lake. But the knowledge that we are passing through scenes which were first made known by the enterprise of Joliet and LaSalle, and which long continued to be the theater where zealous disciples of Loyola exerted their efforts to christian- ize the native tribes, sacrificing their lives in the pious at- tempt, is a circumstance calculated to excite our regret for the intrepidity which brought no lasting good for mission- ary labors and of which no trace remains. The evening was fast approaching when we came to a Pottowattomie village on the west shore. As is usual on these occasions we displayed our ensign, considerable con- fusion was manifested in their cam]^ — men, women and chil- dren running to and fro in confusion and long before we reached the shore the collected population of the village was at the water’s side to greet us on landing. 1049 A few words gave them to understand that we were on our way to attend the treaty at C’iiieago and they informed us that they were on the point of starting for the same place. After the customary ceremonies and presents we visited sev- eral of their lodges, and found none of them destitute of some articles of American or European manufacture as ket- tles, knives, axes, &c.” Also from page 318: ‘‘At two o’clock we reached the mouth of the Vermillion, a fine, clear stream entering on the left bank. This point is estimated to be equi-distant between Chicago and Fort Clark, it being ninety miles either way. The rapids commenced half a mile above which connects it with the Illinois, and is greatly diminished in size above the junction with the Vermillion. The water at once becomes shallow and the rock, which is sandstone, presents itself first in broken masses and soon after flooring the bed of the river. VTien our canoes would no longer float without rubbing against the rocks we got out and made a short ])ortage. The empty canoes being still guided along by men walking in the stream on each side. . When we again embarked we could, however, go but a very short distance. Another portage was neces- sary. In short we could no longer proceed in our water craft. Nothing but a series of rapids appeared above as far as we could explore. The water was scarcely eight or ten inches deep in any place and often less than four. With great exertions we had proceeded two or three miles above the Vermillion and about four o’clock we encamped near a re- markable isolated hill called by French voyagers Le Rocker and Rock Fort.” Also, on page 321, as follows : 3523 “Finding navigation so difficult we determined to relin- quish the design of proceeding any farther by water but to await the arrival of horses from Chicago which had been ordered to meet us near this place on the 10th. A man was sent by land to Reddick’s deposit. He returned at a sea- sonable hour on the following day having found horses in waiting. Having made the necessary arrangements for con- tinuing our voyage by land, we left our canoe men in charge and we mounted our horses at ten o’clock in the morning and resumed the journey in renovated spirits. It was our good fortune to be guided by a Chief of the Pottowattomies of the plains, perfectly acquainted with the route, who had passed it times innumerable, and who knew every choice spot for encamping, and to whom we could safely confide our arrangements. In passing through this once populous country, Pieris, our 1050 Extract, — Schoolcraft Travels. — Continued. trusty guide, pointed out to us the ancient sites of several Indian villages, one of which was situated on the top of a romantic tabular elevation called Buffalo Bock. Another lo- cated on the plain had been completely encompassed by a ditch and wall, the remains of which are still conspicuous, the whole extent of the lines is easily traced.’^ 3524 Also, on page 325, as follows : ‘‘At nine o’clock in the mornir.g we came to a part of the country which is contiguous to the lies Plaines ai\d to the Kankakee, two considerable streams, which by their junction form the Illinois. Here our party halted to allow an oppor- tunity of examining an object that had been described to us being one which was calculated to excite our curiosity. Few persons of observation have probably passed through the river Des Plaines without devoting some attention to this petrified tree.” Also, from 2^^ge 332, as follows: “About ten o’clock in the morning we reached the ford of the Desplaines. We found the river about thirty yards wide and the depth of water two feet. Between this place and the Vermillion, where we left the Illinois, we have seen the river but seldom, although our route has been for the greater part upon its banks. We have, however, seen its channel at a sufficient number of places to determine that it has several long and formidable rapids which completely intercept navi- gation at this sultry season. A remark that has been confirmed by meeting several traders on the plains who had transported their goods and boats in carts from Chicago Creek, and who informed us they thousfht it practicable to enter the Illinois at Mount Joliet. This would lengthen the portage to about thirty miles, but is has been perceived that we experienced difficulties far below this last mentioned point. This fact is sufficient to show the error of those who have supposed that a canal of only eight or ten miles would be necessary to provide navi- gation between Lake Michigan and the Illinois. A canal of this length would, indeed, provide communication which al- ready exists at certain seasons between Chicago Creek and the Desplaines, but must fall far short of the grand pur- pose.” Also, from page 333, as follows: 3526 “We are indebted to a gentleman of correct observation who has explored the route with particular reference to the subject of a canal for the following information respecting those ])arts of the bed of the Illinois and Desplaines^ which we have not personally examined. The computed distance 1051 from the ford of the Desplaines to its connection with the Kankakee is about 45 miles. Fifteen miles of this distance consists of Lake Joliet, and the remainder is almost equally divided between ripples and still waters. The next obstruction occurs at the Kickapoo Rapids which have a fall of perhaps six feet in a distance of a mile and a quarter. But this yields in importance to the Rock Fort Rapids which are commonly computed to be 24 miles long. The total fall of the river in this distance cannot be less than 35 or 40 feet. The Illinois in passing these rapids spreads over a wide surface and was reduced to a depth of a few inches, hence it has been said by cutting a channel in the rock so as to concentrate the volume a good and sufficient naviga- tion would be afforded for boats of eight or ten tons bur- den. By a similar labor the whole series of rapids could be improved and at perhaps comparatively small expense. But it may be a question whether this species of succedaneous canalling as calculated would answer any available purpose. We believe experience has proved it cheaper in the end to open an entirely new channel than to improve the natural bed of a shallow or rapid stream, of one that is subject to sudden fluctuations from vernal or autumnal freshets. This appears to be the proper construction and applicable to the noble idea of the celebrated Brindley ‘That streams were only made to feed canals, — the principal of which, so far as we are capable of judging, appears to be adopted by modern engi- neers, and has been particularly rigidly applied in the exist- ence of the Erie canal. Jeeemiah Collins, a witness for the defendant, testified as follows : 3529 My name is Jeremiah Collins. I live in Grundy County, — will soon be 88 years old. I came from Albany County, Kew York, in 1834, to Grundy County, came by water to Chicago, and by wagon from there. There was no other method of getting down there that I knew of. WY crossed the Desplaines in 3530 coining. There were no boats running down the river at that time that I heard of. I have lived on a farm ever since I came to Grundy County. We used to go up to Chicago by ox team, and with horses, before the canal was opened. I live in Town 34, Range 7 of Section 13. I am about five miles from the Illinois River, and over six to the Desplaines. If my memory serves me right, there was some of our neighbors went up to the . 1052 Collins, — Direct Exam. — Continued. mouth of the Desplaines Eiver when we first settled in 3532 Grundy County; what makes me recollect it is the big weeds that hung over this way (indicating) and we drove right under. There were no buildings near the mouth of the Desplaines when we first came there, nor any settlements between there and Chi- cago. I have never seen any warehouse situated near the moutli of the Desplaines, nor never heard of any. We used to go up there with our cattle and feed them in the fall of the year on blue grass, I never noticed the mouth of the river particularly. 3533 I could ride across the mouth of the river there most any place. I never knew or heard of the river being navigated. Mr. Treat had a mill at Treat’s Island, there was water power there. That is the only thing I know the river was used for. 3534 I knew Johnny Beard. He built a dam and saw mill about 1836 or 1837. I do not know whether the dam was there after they built the aqueduct or not. That was built in 1848. 3536 I knew Henry Fish, — he had a store where they built the locks at the Aux Sable. I do not know any way that he could have got his supplies except by team. I never heard of his getting supplies by boat down the Desplaines before the canal was built. I never heard of anything of that kind. I never heard of there being a corner on salt. We got our salt from 3536 Chicago, by team. I never heard of any salt being brought down the Desplaines on boats. The farmers who settled the country below me on the Illinois Eiver went to Chicago with their produce in teams. I never heard of any farmer taking his produce up the river in boats. 3537 I never heard of a man named John Hamlin having a warehouse at the mouth of the Desplaines for storing goods to be shipped up the river by boats. I don’t believe it would have been possible for a warehouse to have been there since 1834, or I would have seen it. I remember when the Jessups built a house on the DuPage Eiver. I do not know where they got the 3538 lumber to build their house, unless they got it from the saw mill on the DuPage. That mill was right south of where the bridge crosses the DuPage now. A man named Will Camp- 1053 bell, I believe, from Ottawa, built the mill, and Treat built the dam. It was probably a mile from where they built the house. 3539 I have never seen any navigation on the Illinois Eiver along where my farm was, nor heard of any above Ottawa. I donT think there could have been any without my knowing it. Cross-Examination. 3540 I have not sold any land to the Economy Light & Power Company, I donT live within five miles of them. There was then read, at the request of the complainant, from the volume of Schoolcraft, the title page, as follows: 3541 ‘‘Travels in the Central Portion of the Mississippi Val- ley, comprising observations on its minerals, geography, in- ternal resources and aboriginal population. (Performed under the sanction of the Grovernment in the year 1821.) By Henry E. Schoolcraft, U. S. I. A., Honorable Member of the American Geological Society, Member of American Antiqua- rian Society, honorable member of New York Historical So- ciety, correspondent member of New York Lyceum of Na- tural History, correspondent of the Academy of Natural Sciences at Philadelphia, etc. New York. Published by Col- lins & Hannay, 230 Pearl street. J. & J. Harper, Printers, 1825.’^ Also, on pages 8 and 9, from the introduction of said book : 3542 “The Government now proposed to extinguish the In- dian title to that portion of the country included between the northern boundary line of the State of Indiana and Grand Eiver, Michigan, embracing in longitude all that part of the peninsula within these boundaries, which still remained un- purchased. To effect this object, his Excellency, Governor Cass and Solomon Sibley, Esq., were commissioned by the President to meet the Indians in council at Chicago in the summer of 1821; the results of whose efforts is hereafter to be detailed. Having been appointed to fill the office of sec- retary for this commission, I deem it sufficient here to re- mark that the following sketches have been made under rather favorable circumstances during the preliminary tour, which it became necessary to perform in order to meet the place of treaty; and while the large concourse of Indians who were drawn together on this occasion remained encamped in that vicinity. 3543 The usual route in proceeding to Chicago is either to fol- low an Indian trail which leads out from the source of the Eiver Eaisin and is computed to be a little short of three 1054 Ex t rac t, — Sch o ole raft 's Trav els . — C o 1 1 tk i uM. Imndred miles, or by taking ship and performing the voyage through the lakes by the way of Mackinac, which somewhat • more than doubles the distance. But as Government busi- ness required the presence of one of the commissioners on the Wabash, it was proposed to reach that place by means of the water communication connecting that river with the Maumee, and afterwards to extend the route into the Ohio and the Mississippi, and reach Chicago by following up the Illinois to its source. Also, on pages 12 and 13, from the introduction of said book: ‘‘Having now briefly noticed the motive of the journey, the objects proposed to be accomplished and the route to be pur- sued, we shall conclude these preliminary remarks with a short account of our mode of traveling ; or rather, as a slight consideration of the nature of our route, will lead the reader to anticipate of our traveling canoe. In its dimensions a choice was made between the long and pointed Northwest canoe employed in the fur trade, and the light ovate canoe of the lakes; combining in a good degree the strength, the bouyancy and the velocity which are the peculiar characteris- tice of each. And our bark afforded perhaps an equitable standard of comparison of the safety and convenience of this expeditious, and as we think, pretty mode of voyaging. It 3544 was furnished with a small mast, and square sail, and an awning of painted cloth, with side curtains to intercept the rain and mitigate the heat, and contained seats for six men to paddle, and another for a servant and cook in addition to the space for the steersman, who performs his duties stand- ing. Our own seats were made by opening a traveling bed upon the light portable floor placed between the center thwarts of the canoe, and so arranged as to serve the double purpose of sitting and reclining; — or father so as frequently to keep the body in a state of involuntary accubation. Our whole amount of personal baggage, beside a camp bed and a case of books and magazines, might have been compressed within the compass of a moderately capacious traveling trunk; and our outfit of provisions and the luggage of the canoemen were ordered with the same economic view to the capacity of our barge and the acceleration of its movements. A linen marque, a few instruments necessary for making observations upon such branches of science as we purposed noticing, the tools and utensils necessary for cooking and encampment, and the requisite gum and wattap for repairs to the canoe, com- pleted the outfit. An oilcloth which could be spread in a few moments over all, secured the packages against sudden show- ers or the etfects of waves breaking in. A small ensign was affixed to the stern, giving a national character to the equip- ment; which it can scarcely be deemed improper to add was 1055 liberal without being cumbersome and united the advantages of speed and economy without wholly sacrificing comfort. ‘Let schooltaught pride dissemble all it can. These little things are great to little man.’ ” 3546 The map important in showing the point at which they parted from the river was received in evidence (xVtlas, page 3961; Trans., ]). 6592; Ahst., p. 1929). Also, I read from page 319 (Starved Rock) : 3547 “This is an elevated cliff on the left bank of the Illinois, consisting of parallel layers of white sandstone. It is not less than 250 feet high, perpendicular on three sides and washed at its base by the river. On the fourth side it is con- nected with the adjacent range of hills by a narrow peninsular ledge, which can only be ascended by a precipitous, winding path. The summit of this rock is level, and contains about three-fourths of an acre. It is covered with a soil of several feet in depth, bearing a growth of young trees. Strong and almost inaccessible by nature, this natural battlement has been still further fortified by the Indians, and many years ago was the scene of a desperate conflict between the Pottowat- tomies. The latter fled to this place for refuge from the fury of their enemies. The post could not be carried by assault, and tradition says that the besiegers finally succeeded, after many repulses, by cutting off the supply of water. To pro- cure this article the besieged let down vessels attached to ropes of bark, from a part of the precipice which overhangs the river, but the enemy succeeded in cutting off those ropes as often as they were let down. The consequence was a sur- render, which was followed by the total extirpation of the band.” Also, I read from page 328, referring to the petrified tree : 3548 “An opinion upon the species of this gigantic vessel may be dubious, but it appeared to us to coincide in its characters with the Guglans Nigra of our forests. The part which is ex- posed, according to our measurement, is 51 feet and a few inches, and its diameter at the largest end, three feet. But there is apparently, a considerable portion of its original length, concealed in the rock. We broke up from the bed of the river, a number of large pieces. We were careful to choose them from a part where the rocks still rest upon them, and consequently no abrasion of the outer part of the mass had taken place. This rock is a species of recent sand- stone, not essentially different from that which pervades a considerable area near the source of the Illinois. The depth of water on the rock, was commonly little more than 12 inches. ” 1056 Extract, — Schoolcraft’s Travels. — Continued. There is a foot note there which reads as follows: 3549 Thomas Tousey, Esq., of Virginia, who visited this lo- cality in the autumn of 1822, found nearly the same depth of water in the Desplaines. He writes: ‘With your memoir in my hand, we rode up and down the river, till the pursuit was abandoned by the others ; while my own anxiety and zeal did not yield until it was discovered. The detached pieces we found covered with 12 to about 20 inches of water, and each of us broke from them as much as we could well bring away.’ ” There was then read the intervening paragraph between pages 332 and 333 : “But although our journey has produced a conviction, that the difficulty and expense which will attend this work are greatly underrated, it has also impressed us with a more exalted view of this projected communication, and the abil- ity of the country through which it must pass, eventually to complete and maintain it. If the present scanty population and feeble minds of this part of Illinois, has convinced us that the commencement and completion of this important work, are more remote than we before supposed, its final completion is not the less certain, and we regard the plan as one entitled to every rational and proper aid. There are few portions of the western country where the progress of settlement is more certain, or which will admit of a more dense population t and the first efforts of such a community, if enlightened and enterprising, will be to place themselves on an equality with other states, by opening the way to a northern market.” From page 334, I read: 3550 “There is another point of inquiry connected with this canal, which appears to have been too generally overlooked, but which may perhaps oppose serious difficulties to the work. We allude to the formation of a harbor on Lake Michigan where vessels may lie in safety while they are discharging the commodities destined for the Illinois, or encountering the de- lays which commerce frequently imposes. It is well known, that after passing the Manitou Islands, there is no harbor or shelter for vessels in the southern part of Lake Michi- gan; and that every vessel which passes into that lake after the month of September, runs an imminent hazard of ship- wreck. The vessels bound to Chicago come to anchor upon a gravelly bottom in the lake, and discharging with all pos- 3551 sible speed, hasten on their return. The sand which is driven up into the mouth of Chicago Creek will admit boats only to pass over the bar, though the water is deep enough to al- low vessels to lie above. Among the expedients which have 1057 been proposed for keeping the mouth of this creek clear of sand, one of the most ingenuous, and perhaps practicable, is that of turning the Konomic, by a canal of 16 miles, into the Chicago, above the fort, and by the increased body and pres- sure of the water to drive out the accumulated sands. It is somewhat problematical whether a safe and permanent har- bor can be constructed by any effort of human ingenuity, upon the bleak and naked shores of these lakes, exposed as they are to the most furious tempests. And we are inclined to think it would be feasible to construct an artificial island off the mouth of Chicago Creek which might be connected by a bridge with the mainland, with more permanent benefit to the country at large, if not with less expense, than to keep the Chicago clear of sand. Stone for such a work is abund- and near the entrance, in the Green Bay, and if built on a scale sufficiently liberal, it would afford convenient sites for all the storehouses required. 3552 But we must return to the narration of our journey, which here draws to a close. On crossing the Desplaines, we found the opposite shores thronged with Indians, whose loud and obtrusive salutations caused us to make a few minute’s halt. From this point, we were scarcely ever out of sight of straggling parties, all proceeding to the same place. After crossing the south fork of the Chicago, and emerg- ing from the forest that skirts it, nearly the whole number of those who had preceded us appeared on the extensive and level plain that stretches along the shore of the lake, while refreshing and noble spectacle of the lake itself, ^with vast and sullen swell,’ appeared beyond.” 3553 Counsel foe Defendant. I now produce a book entitled ” Illinois, Historical and Statistical”, by John Moses, pub- lished in 1889, and I offer in evidence a portion of that volume, commencing on the bottom of page 76, and running over on a part of page 77 : ‘^The question of routes followed by early explorers be- tween Canada and the country of the Illinois is as interesting as it has been provocative of discussion among the specula- tive antiquarians. But as the investigation is not now of much practical value to the ordinary reader, but little space will be given to it in these pages. Perhaps the most prolific source of doubt and difficulty in the individual to positively trace and identify any par- ticular route, arises from the confounding of newly discov- ered streams with those first discovered, the same name be- ing required to do duty for rivers as distinct as the individ- uality of the explorers who first sailed or paddled a canoe upon them. Thus the name of the Chicago, in its various or- 1058 thographies, was applied more or less indefinitely to the St. Joseph, the Calumet, the Desplaines, and the Illinois Rivers. Both of the latter were also called ‘the Divine’. It was also applied to the country adjacent to the southern portion of Lake Michigan. Such confusion of nomenclature renders it extremely difficult, if not impossible, to determine precisely what stream or locality was meant when either of these names is used by early writers. It must be remembered that the fountainhead of information for early explorers was the In- dians. To them even the primitive mode of transportation by horses or mules was unknown. They Imew of but one way to abridge or vary the tedious marches through forests or glades : That single avenue of escape was found in the water- ways, and the shortest practicable portage connecting these was welcomed as the easiest way to avoid the physical labor which they considered as degrading as it was irksome.” 3555 Hexky Druckee, witness for defendant, testified as follows: Direct Examination. My name is Henry Drucker. I am famiilar with the French language. I have been familiar with the French language since I was a child. (Witness handed book, “Cavelier De La Salle, Margry, Volume 2.”) 3564 Counsel foe Complainant. Then we first will introduce the passage from “Moses, Illinois, Historical and Statisti- cal,” Volume 1, on page 77: “There were four possible routes which could be used in going to the Illinois from eastern Canada, the choice of which depended upon the stage of water and season of the year, and the starting and the objective points. 1. One of these was from Lake Michigan by the Calumet Rivers, which connect with Stony Brook, from which by a short portage, the Desplaines was easily reached. Beck, in his Gazateer of 1823, says, in speaking of this route: ‘The distance is eighteen miles, and it is nearly on a level with the lake. It is said boats have frecpiently passed through this channel to .the Desplaines, and when such is the case it is impossible in many ])laces%to say whether the current sets to the lake, or to the Desplaines. About half way between the lake and the Desplaines, a feather will sometimes float one way, and sometimes the other.’ 3565 2. By the Grand Calumet this stream, rising a few miles 1059 southeast of Lake Michigan, near what is now La porte, Indiana, ran to a point at present called Blue Island, in Cook County, and thence turning flowed back about three miles north of its outward course, and emptied into Lake Michi- gan at a point formely called Indiana City. This route con- nected with the Desplaines, the same as route 1. 3. By the St. Joseph River. Ascending this stream about thirty-five miles, the head waters of the Kankakee River were reached by a portage of about four miles. The distance to the Illinois River by the Kankakee was 180 miles, but only 80 across the country. 4. By the Chicago River: the distance by this route from the lake to Desplaines by the South Branch, including a port- age of four miles, was twelve miles. The north branch was also doubtless sometimes used, although not so direct. Now, if a wa^Tarer was on the Illinois River, and desired to reach , mission of St. Francis Xavier, at Green Bay, as did Joliet in 1673, the most direct and feasible of the above discovered routes, would be either the 1st or 4th. And whichever way was taken by Joliet and Marciuette, in September, 1673, on their return trip, was adopted by Marquette on the second trip in 1675, for he observes in his journal of the latter: Alarch 31st: Here we began our portage more than eigh- teen months ago.’ 3566 To the mariner desiring to reach Illinois from Mackinac, it would be nearer to proceed down the east side of Lake Michigan to the Grand Calumet, and up that stream con- nected with Route 1. But in 1679, LaSalle, being at Green Bay, appointed the mouth of the St. Joseph as a place of rendezvous for his exhibition in route for Illinois, and or- dered Tonty to proceed thither on the east side of the lake, while he coasted along its western and southern -sides. He may have known of the St. Joseph route, which he then pur- sued, and not of the other ; or, it being a winter, it may have * been more a question of good ways for sleighs than of water navigation. At all events, on this occasion, he took the Kan- kakee route, and he doubtless went over the same course on his second trip in searching for Tonty. On his third trip to the Illinois, which was also in the winter, 1681, 2, he men- tions the Chicago River; and as the Grand Calumet is plainly marked with this name on his map, recently discovered in Paris, and published by Margry, and as that would be a nearer and better route in the winter than the Kankakee, or that by the Chicago River as now known, it is fair to pre- sume that when he alluded to the ‘Chicago Route,’ he re- ferred to the passage of the Grand Calumet. 3567 As early as 1698 a mission had been established among the Miamis, called Chicago. It is evident that tins mission was on the route usually followed by travelers, wherever that 1060 was, along the southwestern shore of Lake Michigan. St. Kosme and party undoubtedly followed this route in 1699, as did Father Grevier the year following. Prior to 1684, the Chicago River, as now known does not appear upon any map then extant. At least, it is not on those of Marquette and Hennepin; and while there is something resembling it on those of Joliet and LaSalle, the name of Chekagoua is plainly given, by the latter to the Calumet, as stated above. Heney Deucker, resumed. Q. Calling your attention, Mr. Drucker, to volume Cavelier de LaSalle, Margry Volume 2, have you translated a portion of the text appearing on pages 81 and 82 of that volume? A. I have; yes, sir. I didn’t notice the date of the letter. This is the letter. It begins on page 32. The heading as translated is: ‘‘The letter of the discoverer to one of his associates,” 3568 and this memorandum below, “the commencement is miss- ing, but in order to complete it you can refer to the official relation of 1679 to 1671, of which the editor must have in- spired himself in this letter, and the following one, because he copied them very often, and having always good care to leave out from his relation the difficult passages, where La- Salle speaks of the trees, and names those of whom he com- plains.” The letter extends to page 93 and is signed by LaSalle. I also translate the letter beginning on page 206 of that volume and extending to the bottom of the page, to the word “Missis- sippi.” It is a letter of the Father Zenobie Membre dated 3569 The River of the Mississippi, 3 June, 1682: “The prompt departure of M. de Tonty having prevented my writing to you further all that has happened to me since my departure from Fort Frontenac last year, I see myself obliged, after imploring your blessing, to go back in order to tell you the main happenings.” (I have translated it very literally.) “Your Reverence has known the reasons which made me return to the Miamis in order to accompany from there i\f. de LaSalle, and on his discovery of the sea, which [ have done u]) to the present time. Since his arrival at the ])lace mentioned we left from .there with M. de Tonte some days before ]\r. de LaSalle, who joined us on Chicago, where another lot of his men joined us also, so that all were as- sembled at the beginning of January, 1682, at the place where 1061 Chicago enters into the river of the Illinois, and as it was frozen like the one we came from, we continued our route on the ice, pulling our canoes and belongings not only to the village of the Illinois, where we met nobody, all winter- ing somewhere else, but thirty leagues further down to the end of Lake Pimedy, where, finding navigation open, we de- scended in canoes said river to the Mississippi.” 3570 Counsel for Defendant. In that same volume, the re- print appearing on ])age 552 of the magazine of American History, Volume two, being entitled in this volume: “The ar- rival of LaSalle at the Illinois.” “ Descri])tion of the country as far as the junction of the Missouri with this river, which the discoverer named Colbert River,” from some detached leaves of a letter of LaSalle, the remainder of which are missing. We have this again in this volume, the Magazine of American History. If I can find that letter there, I want him simply to testify as to wliether he has compared this translation with the original. 3572 Counsel for Defendant. Q. I will direct your atten- tion to the Magazine of American History, Volume 2, at page 552, letter, the heading of which as it appears on that book on that page is as I have given you. Have you examined the let- ter appearing upon page 164 of the Chevalier de LaSalle, Margry, Volume two, the same volume from which your first two letters were translated? A. I did. I remember it, because it begins to speak of Christmas. I have compared the translation appearing in this magazine of American History with the original text as shown in the vol- ume of Margry. It is substantially perfectly correct. They had a date there the 7th of January in one passage, and I think it was the 6th of January in the original. There was offered in evidence on behalf of the defendant the report of Jacob A. Harman, Sanitary Engineer, employed by the Illinois State Board of Health to that Board, and found in the report of said Board of Health for the year 1901, as follows : 3578 “Desplaines River — The Desplaines is a stream with moderate descent from its source to a point near the line of Cook and Will Counties, a few miles southwest of Chi- cago, where it begins a rapid descent. It makes a fall of about 70 feet in eight miles, when just below Joliet it reaches a pool known as Joliet Lake, which continues nearly to its mouth. ” 1062 Report of Harman to State Board of Health. — Continued, Also, a portion of said report found on page 134: ‘‘Stream Gaugings. Gaugings of the principal tributaries and of the Illinois Eiver at Peoria were made during the low water stage in October, 1899, and represent approximately the average conditions of these streams during the late sum- mer and early fall months. These gaugings were taken with a Price’s current meter which had been previously rated by the United States Geological Survey. The beds of the streams were accurately cross sectioned and readings taken at the following stations : Desplaines Eiver — At wagon bridge about one mile below C. B. & Q. E. E. bridge near Eiverside. Cross section was also taken at C. B. & Q. E. E. bridge for gaugings at higher stages of the river. Flow 13.21 cubic feet per second. Turbidity .04.” Also a portion of said report appearing on page 159, being a table entitled “Eesume of Precipitation on Illinois Eiver Ba- sin. ’ ’ ‘ ‘ Sub-Basins. 1890 1891 1892 1893 .1894 1895 Desplaines 35.82 29.03 35.98 29.03 27.80 30.48 DuPage 31.32 27.15 29.94 Kankakee 36.74 27.46 36.71 26.06 27.15 29.33 Fox 33.63 32.94 44.41 30.37 30.51 28.19 Vermillion 32.02 34.18 41.00 27.09 28.85 30.95 Mackinaw 26.33 41.70 40.84 33.52 27.80 33.26 Spoon 37.16 29.70 25.32 33.20 Sangamon 32.35 36.39 42.37 31.99 27.46 33.61 Crooked Creek 29.13 33.49 40.48 31.14 27.84 36.43 Macoupin Creek McKee’s Creek 28.47 28.69 44.24 35.43 28.74 32.65 29.13 33.49 42.03 36.08 28.52 36.82 Illinois Eiver direct 28.19 33.92 40.93 30.61 26.65 32.72 Annual Averages 31.18 33.13 40.56 31.03 27.82 32.29 Total Sub-Basins 1896 1897 1898 1899 Averages. Desplaines 33.74 30.55 37.74 28.03 31.82 DuPage 37.95 34.28 45.32 29.82 33.68 Kankakee 35.05 31.48 42.11 28.18 32.03 Fox 37.14 32.50 42.25 28.14 34.01 Vermillion 36.21 32.96 42.34 28.60 33.52 Mackinaw 35.37 29.43 42.96 29.62 34.08 Spoon 35.52 29.70 47.34 31.94 33.74 Sangamon 35.01 34.86 48.31 33.22 35.56 Crooked Creek 41.43 37.08 51.07 37.39 36.55 Macoupin Creek McKee’s Creek 36.97 37.17 49.46 37.20 35.90 39.91 37.95 52.15 37.61 37.37 Illinois Eiver direct 35.05 33.12 46.77 33.05 34.01 Annual Averages 36.61 33.42 45.73 31.90 34.36” 1063 Also a portion of said report found on page 183, as follows : 3582 ‘‘The flow of the Illinois Eiver at Peoria is made up of the combined flow of the tributaries above, including the sewer- age from Chicago which reaches the DesPlaines Eiver at Joliet by way of the Illinois Eiver and Michigan Canal. The Desplaines Eiver at Eiverside, a few miles above Joliet, goes entirely dry at that point nearly every fall and for days and weeks at a time there is no appreciable flow. On the DuPage Eiver, which enters the Desplaines a few miles above the Junction of the Desplaines and the Kankakee, no data as to the low water flow is at hand, except the discharge measure' ment taken under my direction in October, 1899, which shows 32.77 cubic feet per second. This flow is greater than that found in the Desplaines river on the previous day. The flow in the Desplaines at Eiverside was 13.21 cubic feet per second. The water of the DuPage are added to the Desplaines before they reach the Illinois so that the natural flow in the Des- plaines, where it joins the Kankakee to form the Illinois, at the time of the gaugings referred to were taken would have been approximately 50 cubic feet per second, while the amount of sewage flowing through the Illinois and Michigan Canal was 600 cubic feet per second. Practically all of the flow of the Desplaines Eiver as it reaches the Illinois, is therefore, during dry weather, Chicago sewage. Detailed observations of the flow of the Desplaines Eiver at Eiverside have been taken more or less continuously since 1877. The area of the drainage basin above this point is 630 square miles.” Also from page 187 of said report : 3583 “The Desplaines and Kankakee which are the principal head water tributaries of the Illinois, constitute about one- half of the drainage area above Peoria, the only other tribu- taries of considerable importance being the Fox Eiver from the north and the Vermillion Eiver from the south. The total drainage area of the Desplaines Eiver is 1322 square miles and the Kankakee 5146 square miles. The Fox Eiver 2700 square miles and the Vermillion Elver 1317 square miles. The total area of the Illinois Drainage basin to Peoria is 13,479 square miles. ’ ’ Also a portion of said report on page 188, as follows: “From the foregoing data it is quite evident that the con- tributions to the flow of the Illinois Eiver during the dry periods come principally from the Kankakee Eiver and^ the Fox Eiver, the Desplaines and the Vermillion being prac- tically dry at these periods. The sewage from the City of Chicago, as we have found, being equal to or greater than the flow of all the tributary streams, some allowance, of course 1064 to be made for losses by evaporation l)etween the headwaters of the Illinois and Peoria.” Motion by complainants to strike out all passages read from . said last report, as being direct quotations or readings of which the primary record has already been proven; also because done loosely and broadly for general health purposes, and not having in view the present inquiry. 3585 The Court. They may go in for what they are worth. Counsel for Defendant. We propose to put in certain re- })orts of various engineers who, in early days were employed to ex- amine and report the best route for the proposed canal, and in or- der that your Honor may understand how this report came about, I am going to refer to certain statutes, I am not going to offer them in evidence because I understand the court takes judicial notice of them, but simply to have them in the mind of the court. I will call attention to them as we go along. The Act of March 30, 1822, Congress authorized the State of Illinois : “To survey and mark through the public lands of the United States, the route of the canal connecting the Illinois Eiver with the southern bend of Lake Michigan.” Act of Illinois Legislature approved February 14th, 1823 (laws 1823, page 151, statutes of 1856, page 419) Commissioners were appointed : “ To consider, devise, and adopt such measures as shall or may be requisite to effect the communication, by canal and locks, between the navigable waters of the Illinois Eiver and Imke Michigan.” Act of Illinois approved January 22, 1829, statutes of 1856, page 41, directing the Governor, with the consent of the Senate, to appoint three commissioners, biennially. 3587 “Whose duty it shall be to consider, devise and adopt such measures as may be required to facilitate and effect the com- munication, by means of a canal and locks, between the navi- gable waters of the Illinois Eiver and Lake Michigan.” Section 5 of said Act providing that the commissioners should have the territory of the State contiguous to the probable course of the canal, explored and examined for the purpose of fixing the most proi)er route, etc. Also providing that the canal should be 10()5 at least four feet deep, and to be furnished with adequate locks, etc., to furnish navigation for boats of at least 75 feet in lengtli, 131 feet wide, and drawing 3 feet of water. Also Section 7 of Act February 15, 1831 (Laws 1831, page 39, lievised Statutes 1856, page 426), authorizing the Canal Commis- sioners to employ an engineer, who shall examine the Illinois Kiver, and if that river can be made navigable by dams from the mouth of the Fox to the head of steamboat navigation, then the commissioners shall have ])ower to terminate the canal at the Fox River. Section 13 of the same Act providing that the commissioners shall ascertain whether the Calamic River will be a sufficient feeder between the Chicago and Desplaines River “or whether the con- struction of a railroad is not preferable, or will be of more public utility than a canal.” That if the commissioners are satisfied with the sufficiency of the river, they are to commence excavation without delay. There was also read in evidence from Senate Journal (Illinois), 1835, page 17, from the message of William Lee D. Ewing, acting Governor, dated December 2, 1834, addressed to the Senate and House, as follows : 3594 “I need not refer more particularly to the contemplated connection of Lake Michigan and the navigable waters of the Illinois River. A bill to incorporate a company for this pur- pose passed the House of Representatives at the last session of the General Assembly, and was barely lost in the Senate. Since that time the subject has been extensively agitated by the community, and the opinion of our constituents in favor of that measure comes to us with unbroken unanimity, and deep will be their disappointment and abiding their denun- ciation, should the action of the Legislature fail of being re- sponsive to their wishes and their interests.” (Objected to as immaterial; overruled.) There was also read in evidence from the message of Josei)h Duncan, Governor of the State of Illinois, to the Legislature, dated December 3rd, 1834, and found upon pages 21 to 29 of the same volume last referred to, as follows : 3595 “The construction of a canal from Chicago, on Lake Michi- gan, to the Illinois River, has long occupied the public atten- tion; and the time has arrived, in my opinion, when a proper 1066 Message of Gov. Duncan, 1834. — Continued. respect for the interests of this, and all the State, requires that the work be commenced and completed without further delay. It is now more than seven years since Congress made a grant of land which was then supposed to be sufficient for the construction of this canal; which canal was then, and is now general!}^ considered a work of greater national import- ance than any work of the kind that has yet been proposed to be made in our country. Such is the universal estimate of its importance by all men of intelligence, that I have no hesi- tation in believing that ample funds can he procured on the most favorable terms, for its speedy accomplishment. * * * In my judgment experience has shown canals to he much more useful, and generally cheaper of construction than rail- roads. When well made they require less expensive repairs, and are continually improving, and will last forever; while railroads are kept in repair at a very heavy expense, and will last about fifteen years. In the present case especially a canal should be preferred, because it connects by a short and direct route, two great naffigable waters, that wash the shores of most of the states and territories of the United States, and British provinces of Xorth America; and thus opening a com- merce between the remotest parts of the continent. By using the lake as a feeder to this canal a large body of water will be turned into the Illinois Biver, which will improve its navi- gation, and by increasing the current will, probably, render its shores more healthy.” Also from the message of Governor Joseph Duncan, dated De- . cember 4, 1838, addressed to the Senate and House of the 11th General Assembly; — found in the Journal of 1838-9, page 12, as fol- lows : 3597 “The rapidly increasing commerce on those rivers requires an immediate improvement of their channels, and as the United States are bound to keep them open, by an agreement with Virginia, in the articles of cession, and with the governments of Ohio,' Indiana and Illinois, in the following article of the ordinance of 1787, which was required to be made a part of the constitution of those states ; to-wit : ^ . ‘Article IV. The navigation of the waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citi- zens of the United States and those of any other State that may be admitted into the confederacy, without any tax, im- post or duties therefor;’ and as to those two rivers, the AVabash and Illinois, are recog- nized to be the waters alluded to and the United States have 1067 provided for improving the carrying places between them and the lakes, there can be no doubt, when properly informed of the importance and necessity of such good faith and imme- diately cause every obstruction to be removed from their chan- nels. I would therefore recommend that the subject be laid before Congress at its present session.’^ There was also read in evidence from '‘Keport of Canal Commissioners of the State of Illinois, made to the General Assembly, on the 3rd of January, 1825, accompanied by a map of the proposed canal, together with the law incorporating a company to open a canal to connect 'the waters of Lake Michigan with those of the Illinois River 1825.” (Objection; overruled.) Said report is as follows: ^‘Report, Etc. Vandalia, 3d January, 1825. To the Speaker of the House of Representatives : 3600 Sir: — The Canal Commissions have the honor to en- close the report required by ‘An Act to provide for the im- provement of the internal navigation of this state’ approved February 14th, 1823, accompanied by the report of the engi- neers to them, with the maps, plans and documents relating thereto. They are, very respectfully, your Ob’t Serv’ts, (Signed) Thos. Sloo, Jr. President, Theop W. Smith, Emahuel J. West, Erastus Brown. The Commissioners appointed by an Act of the General As- sembly of the State of Illinois, entitled ‘An Act to provide for the improvement of the interval navigation of this State,’ approved February 14th, 1823, most respectfully present the following report to the General Asembly, being a jDlain and comprehensive report of their proceedings,’ as by the said Act is required. The duties enjoined by said Act on the Commissioners are first, to consider, devise and adopt, such measures as shall, 3601 or may be requisite to effect the communication, by canal and locks, between the navigable waters of the Illinois River and Lake Michigan: Secondly, to cause that part of the territory of this State, which may lie upon or be contiguous to, the probable courses and ranges of said canal, to be explored and examined, for determining the most eligible route for the same; to cause surveys and levels to be taken, and accurate maps, field books. 1068 Report, — Canal Com. 1825. — Continued. and draughts thereof to be made; to adopt and recommend proper plans for the construction and formation of a canal, and of the locks, dams and embankments, tunnels, culverts and aqueducts; and, to cause such plans, draughts and models to be executed: Thirdly, to make calculations and estimates of the expenses of the foregoing operations : Fourthly, to invite the attention of the Governors of the States of Ohio and Indiana, and through them to the Legis- latures of those states, to the importance of a canal communi- cation between the Wabash and Maumee Kivers. The Commissioners met in Vandalia shortly after the pas- sage of the Act referred to, and, after organizing the board, from various considerations, were of the opinion that they would best effect the intentions of the General Assembly by securing the services of one of the principal engineers em- ployed in the construction of the New York Canal; and for 3602 the accomplishment of that object addressed letters to Messrs. Benjamin Y/right, and James Geddes who had been thus em- ployed. Both these gentlemen having declined as will be seen by their answers herewith communicated, they employed a gentleman about to visit New York, to complete an arrange- ment with some competent person in that state, under the advice of the President of the New York Board of Canal Com- missioners. This gentleman’s interviews resulting in no positive en- gagement, and considerable time having elapsed, they felt' themselves compelled to seek for some competent person, to execute the duties of engineer, within the immediate vicinity of this section of the western country; and they feel no small gratification in being enabled to say with confidence, that in their opinion, the duties which have been entrusted to and imposed upon the gentleman whom they have selected, have been executed with a skill and ability not surpassed by any one engaged in similar services. As the country situated between the navigable waters of the Illinois River and Lake Michigan, is remote from the in- habited parts of this State, and the topography was imper- fectly known, the Commissioners conceived it essentially neces- sary* to a correct execution of the duties with which they were entrusted, to explore the country previously to the taking of the levels, and causing the surveys to be made; as without this examination,- it was impossible to determine, with any accuracy, where the leveling and surveying ought to be com- menced,*^ the probable course to be run, or the point of ter- mination; and, as affording the additional advantage of a correct data, for the ultimate execution of their duties, at the least possible expense. 1069 A ijortion of tlie Commissioners, therefore, in the fall of 1823, accompanied by Col. Justus Post, whom they had en- gaged as their engineer, explored and examined the country from the rapids of the Illinois Piver, with the streams empty- ing into the same, to Lake Michigan ; and the country border- ing on the Chicago River and Calamic, which streams also empty into Lake Michigan. The Commissioners returned by water in canoes, examining the bed of the rivers, particularly the depth of the water, and the height of the river bank. They also ascended the Chicago River, or Arm of Lake Mich- igan, having its confluence with that lake on the west side, about 35 miles below the head of it, to the head of the river, 5 miles. From this point there is a portage of seven miles to the River Desplaines. They then descended the Desplaines 50 or 60 miles, to its mouth; where the uniting with the Kan-Ka-Kee, a considerable river from the southeast, its source being in the 360-1 country with those of the Wabash and Saint Joseph, the River Illinois is formed; thence dowm this river to its con- fluence with the Mississippi, 350 miles; thence down the latter 18 miles to Alton, the place from whence they had departed. It is a source of much satisfaction for the Commissioners to be enabled to state, that the result of this examination eventuated in the conviction, that, from the mouth of the Illi- nois River, to the Little Vermillion, a handsome stream 12 or 15 feet wide, discharging its wmters into the Illinois River on the west side, and about 4 miles below the rapids of the Illinois, there is not the least obstruction to the navigation, excepting in two or three places below Spoon River, in ex- tremely low stages of water, where small sandbars show them- selves, but which, however, can be easily removed. Perhaps no river on the continent surpasses the Illinois in the facility and safety of its navigation, the current very gen- tle, and there being but few islands in the river. From the mouth of the Little Vermillion, above referred to, neither the Illinois nor the Desplaines is navigable in low stages of water, as they are frequently interrupted by rapids; but no serious obstacles present themselves, in effecting a canal navigation from the head of the navigable waters of the Illinois River, to Lake Michigan; the valley of the Illinois and Desplaines, being an inclined plane, and the country between the Desplaines and the Chicago River smooth, flat prairie, with gentle inclinations to the lake. The country being, as already remarked, uninhabited, the spring seasons extremely wet, and in summer the grass ex- tremely high, the Commissioners, (thought) the proper time to make the requisite surveys, and levels, would be in the fall of the year, as the work could then be performed more ac- curately and expeditiously and with much less expense than 1070 Report, — Canal Com. lS2b.— Continued. at any other time. Under these considerations preparations were made to begin the leveling and surveying as early in the autumn of 1824 as the grass and vegetation could be destroyed by fire ; this being an inseparable and preparatory act for the commencement of the work. To wait for this period, neces- sarily involved a further consideration, that there would not be time sufficient for one engineer to perform the work in season, to enable the Commissioners to make a report of their proceedings to the General Assembly at its present session; it, therefore, became necessary to employ another engineer, to assist in executing the levels, surveys, draughts and plans, and, accordingly Col. Eene Paul, of Missouri, was selected 3606 by the Commissioners for this purpose. The engineers, with one of the Commissioners, proceeded, accordingly, with two companies, several of the members of which were occasionally left behind by reason of sickness. One of the companies to Chicago, on the shore of Lake Michi- gan and the other to the rapids of the Eiver Illinois, with a mutual understanding to confine their operations of leveling to the north side of the Illinois and Desplaines, and the valleys of those rivers. The party at Chicago, after sounding and examining the dejDth of water on the lake shore, near the Chi- cago Eiver, and soimding and meandering that river to its head, (the waters of which were found stagnant and on a level with the waters of Lake Michigan) proceeded leveling in a direction to the ford of the Desplaines, where it approaches, in its nearest i3oint, to the Chicago Eiver; then crossed that stream, and descended on the north side, until the company, which had commenced leveling and surveying at the foot of the rapids, intercepted them. The object of the surveying and leveling, being to ascer- tain the summit level and inequalities of the surface of the country, between the Illinois Eiver, at the foot of the rapids, and the lake, and to ascertain the inclination from the summit level to both the lake and the river, as well as the courses and 3607 distances, to enable the Commissioners to consider the prac- ticability and probable expense of constructing a canal, con- necting those points, immediate reference was not had to the actual location of the canal line, but throughout the entire route, great caution was observed in keeping on ground not sensibly affected by the inundation of river banks. The Commissioners are fully satisfied of the practicability of the proposed communication, and of the facilities which the country;;, and the character of its resources, in general, afford for the completion of so great and desirable an object; and as the accompanying report and plans of the engineers, afford a more detailed, scientific and accurate exposition than they could possibly offer themselves, they refer thereto, for 1071 more minute and particular information than is contained herein; contenting themselves with stating the general re- sults, which their own observations, and the examination of the various reasons connected with the information afforded by the report of the engineers, have enabled them to arrive at. From the ascertained levels, as described in the report of the engineers, it seems certain that the surface water level of Lake Michigan is 157 feet 11 inches and 7-lOths above the 3608 surface water level of the point at the mouth of the Little Vermillion Elver, as designated on the profile of the route by the engineers, where it is contemplated to connect the canal with the Eiver Illinois. Five routes are proposed, as will be seen by reference to the report of the engineers, but it will be understood that these five routes are not different ones altogether, but only vari- ations of a portion of the upper part of the general route, lying between the head of the Chicago Eiver, and a point on the Eiver Desplaines, near the head of Isle a la Cache; and that from this point, to the mouth of the Little Vermillion, all the routes are the same, excepting in that designated in the report of the engineers, from A to H, with the intention to use the waters of Lake Michigan for a feeder; and after passing the Eiver Desplaines, by an aqueduct, at the point H, to connect the canal with the principal line at K, and thence to the mouth of the Little Vermillion. As these routes are all accurately and minutely described in the report of the engineers, the Commissioners deem it unnecessary to present in their report a recapitulation of them, and therefore, refer thereto, for the distance of each, the necessary excavations, with the number of dams, locks, aqueducts, culverts and embankments, and the probable ex- pense of each. 3609 From an examination of the data assumed by the engi- neers, in their calculations of the probable expense of these different routes, the Commissioners are induced to believe that those calculations will not vary materially from the actual expense, and they are rather inclined to the opinion that the cost will not exceed, in any case, the amount of the estimate. First route is estimated at $716,110.71 Second route 639,542.78 Third route 668,289.68 Fourth route 682,610.20 Fifth route • • • • 689,746.96 These estimates, it is true, exceed considerably the general expectation, and the Commissioners are too well aware of the embarrassments in the financial situation of the State, at present, to indulge a well founded hope that immediate mens- 1072 Report, — Canal Com. 1825. — Continued. ures can be adopted, for executing a work of so mucli im- portance. The distance, as well as the general character of the streams, between the points designated in the surveys, and through which the communication is supposed to be effected, has been greatly misunderstood, and hence the amount of the expense, has been in public estimation, greatly under- 8610 rated; but still, when a survey is taken of the great and various objects, and the peculiar beneficial results which would inevitably accompany the completion of this work, whether of a commercial or political nature, the mind ardently grasps at the projects, and hope leads it to the conclusion that the day is not far distant, when, either by a great and persevering effort of the State, or by the magnanimous exer- tions of individual enterprise, this desirable and noble object shall be attained. To this point, the attention of every enlightened mind with- in our State ought to be directed. It is one connected with the general interests of several of the States, and so intimate- ly with our own, that in it is greatly involved the dearest and best hopes of our future wealth and importance. Every con- sideration, therefore, of interest, or of pride, ought to induce us to seek for the early adoption of measures, commensurate with its accomplishment. It is supposed that its execution might be effectuated by a liberal grant to individuals of the right to construct the same, with certain benefits accruing to them therefrom ; but whether a monopoly of the kind would be an act of sound policy on the part of the State under existing circumstances, is a subject of serious consideration for the Legislature, it is not, however, to be denied in the 3611 present deranged state of our currency, that the State at this time, nor indeed for many years to come, can, in all human probability, even attempt the execution of the work. Under these considerations, it might be advantageous to the great interests of the State, to encourage individual enterprise, as it is probable that by such enterprise alone this important work can be commenced and consummated within any reason- able period. What will, all circumstances considered, be the soundest policy to be pursued, is a subject for the considera- tion of those, to whom the general and permanent interests of the State are, or shall hereafter be confided. The Commissioners forebear to add any further remarks on the im])ortance of a sul)ject, to which the attention of many of the most enlightened statesmen in the United States, has been a long time drawn, and which, in this enlightened age, is becoming one of the cardinal ])olicies in all the States. The accom})anying correspondence marked ‘A^ will show what progress has been made in the execution of the duties 1073 imposed on the Commissioners, under the fourth head, as stated in this report. It is proper to remark, while on this subject, that no answer has been received from the Governor of the State of Ohio, to communication addressed to him by the President of the Board. The Commissioners, in concluding their report, will re- mark, that in presenting the account of their expenditure to the Auditor of Public Accounts, they are aware that the actual expense will have exceeded the appropriation made by the last General Assembly, yet, when the currency in which that appropriation was made, the great depreciation which it suffered between the time of its appropriation and its receipt and payment, with the deduction for interest on the bank notes, when drawn at the bank, and the nature and extent of the work performed, are considered, it will be satisfac- torily perceived, that no work of equal magnitude, of the kind, has ever been performed at so cheap a rate. Thos Sloo, Jk., President. Eeastus Browx, Emanuel J. West, Theop W. Smith. Vandalia, 3d January, 1825.” ‘‘To the Canal Commissioners of the State of Illinois: The undersigned, to whom was referred the leveling of the route and estimating the expense of constructing the contem- plated canal for connecting the waters of Lake Michigan, with those of the Illinois Eiver, in presenting their field notes and plans of the route and levels taken, have the honor to report : 3614 That pursuant to instructions from the Commissioners, they proceeded with two companies, one to Chicago, on the shore of Lake Michigan, and the other to the rapids of the Illinois Eiver, with a mutual understanding resulting from a cursory examination of the topography of the country made in the autumn of 1823, to confine the operations of leveling to the north side of the Eiver Illinois and Aux Plaines, and in the valleys of those rivers. In consequence of which the party at Chicago, after sounding the lake near the shore, and sounding and meandering the Chicago Eiver to its head (the waters of which were found stagnant and on a level with the water in Lake Michigan), proceeded leveling in the direc- tion of the ford of Desplaines, where they crossed that stream and descended on the north side, in its valley, till the two companies intercepted each other in the front of Mount Joli- ette. The object of this tour being to ascertain the inclination of an imaginary plane drawn from the surface of the water in Lake Michigan to the surface of the water, at some conveni- 1074 Post and Paul Report. — Continued. eiit point on the Illinois Eiver, below the rapids, and to con- sider the practicability and probable expense of constructing a canal connecting those points, the undersigned have con- fined themselves no further to locations than merely to desig- nate the two extreme points, the head of the Chicago Eiver being one, and the confluence of the Little Vermillion and the Illinois being the other. The depth of the water between this point and the rapids being insufficient for the purposes of navigation, and the nature of the adjoining shores of the rivers being unfavorable for the object required, it was deemed advisable to descend to this point (a few miles below the foot of the rapids), where a convenient and safe location of the junction of the canal with the river may be had ; it be- ing near the bluff, and having, in its immediate vicinity, but a small strip of ground, at any time, subject to inundations. Between the two extreme points above designated, the country, particularly the vallies of the river, being generally an open prairie, the undersigned have, in the courses run, consulted expedition, but when practicable, have avoided cross- ing ground sensibly atfected by high water. From this general view of the plans of their operation, the undersigned draw their attention to a more detailed consid- eration of the various subjects connected with the object in view, and beg leave further to report: 1st. On the inclination of the planes connecting designated points on the route, and the inclination of the plane connect- ing the extreme points. 2d. On the rivers crossed in the route, their general char- acter and the quantities of water furnished by each. 3616 3d. The description and nature of the earth and rocks on the route followed. 4th. On the probable quantity of excavations, embank- ments and grubbing. 5th. On the number and description of aqueducts, dams and culverts that will probably be required on the different routes. 6th. On the probable number and description of locks and moles. 7th. On the probable expense of construction, including the different routes designated on the plat. 8th. On the practicability of construction. 9th. Observations and remarks. 1st. The inclination of the planes connecting the different points on the route, and the inclination of the plane connect- ing the extreme points. In taking the observation to ascertain the difference of level between the points hereafter designated, the imder- signed have operated with all practicable care; and in all cases where the distances between the level station and the 1075 sight poles were not exactly or nearly equal; the necessary corrections for curvature and refraction, have been made, from which it is presumable that the results herein shown may be considered very nearly approximating the truth. 3617 The object the undersigned had in view in ascertaining the respective levels of the points B. P. S. I. and L., noted on the plat, was to enable themselves to more satisfactorily investi- gate the various routes that may be formed by connecting those points, in the vicinity, and on either side of the Des- plaines; then from the knowledge they possess of the inter- mediate country, to judge of their respective practicabilities, and probable expense of construction. From the mouth of the Little Vermillion, the point of be- ginning, to L, a distance of 33 miles, 16 chains, 08 links, and 9 ms. 64 chs. 03 below the point where the route traced on the plat crossed the Biver Aux Sable, there is an ascent of 86 feet, 11 inches, 2-10. Here the main bluff of the Illinois dis- appears, having gradually settled down to the level of an ex- tensive valley spreading out to the north and east (in which the river Aux Sables and Nettle Creeks have their courses) which is supposed to unite with a similar valley, putting out in a south westwardly direction, from the valley of Aux Planes, near Cache Island. From the point L to the point I, near Cache Island, is a distance of 37 ms. 47 chs. 02, and has an ascent of 67 ft. 3 in 8, consequently the practicability of an interior route, con- necting those points is visibly manifest ; but the quantity and nature of the cutting required to connect them can be ascer- tained only by careful examination and survey. From the point I at Cache Island to the point B at the ford of the Desplaines, a distance of 18 ms. 56 chs. 60, there is an ascent of 15 ft. 0 in. 4, and the canal on the northern side of the river may be so located as to avoid, in. some degree, the deep cuttings between these points. From the point B at the ford of the Desplaines, to the point C, the summit level of the country between the Desplaines and the Chicago Eiver, or Lake Michigan, a distance of 12 chs. 28, there is an ascent of 5 ft. 8 in. lines. The point C we have denominated the summit level of the route between the ford of the Desplaines and Lake Michigan, but it is evident that by the ultimate loca- tion that must necessarily be given to the canal, the point C will also be the summit level of the route connecting the two extreme points. Then from C to A, at the head of the Chi- cago Eiver, a distance of 7ms. 40 chs. 64, there is a descent of 17 ft. 0 in. 6. From this concise detail of results, it readily follows that the point L is 86 ft. 11 in. 2 above the water level at V, the point of beginning; that the point I at Cache Island, is 154 ft. 3 in. above the same point; that the point B at the ford, 1076 Post and Paul Report. — Continued. is 169 ft. 3 in. 4, above the same point ; and 11 ft. 3 in. 7 above the point A at the head of the Chicago ; that the summit level C is 5 ft. 8 in. 9, above the point B, and 17 ft. 0 in. 6 above the point A, or the surface of the water level of Lake Michi- gan; that the point A, or surface water level of Lake Michi- gan is 3 ft. 8 in. 7 above the point I at Cache Island; and finally that the surface water level of Lake Michigan is 157 ft. 11 in. 7 above the surface water level of the point where it is contemplated to connect the canal with the Elver Illi- nois. Before dismissing the subject now under consideration, the undersigned deem it expedient, for the more ready compre-. liension of the vertical section they have presented of the traced route, to call the attention of the Commissioners to the different scales used, for without a constant attention to this point, the representation will appear quite imperfect, since the ratio of the horizontal to the vertical scale is as 1 to 165. 2d. Rivers to he crossed, their general characters, and the quantity of water respectively furnished by each. In ascending from the point of beginning, passing the rear of the Butfalo Rock, a range of high perpendicular rocks on the northern margin of the Illinois River, the first stream we meet with, worthy of notice, is Fox River, 14 ms. 34 chs. 84 distant from the point of beginning. This is a river of 3620 considerable magnitude; is 4 chs. 09 wide, and at its pres- ent stage, furnishes 450,000 cubic feet of water in an hour. This stream, during the period of high water, evidently ex- pands itself beyond its first banks, and probably rises, at those times, about 20 feet above its present surface level; but as its second banks, at the points crossed by the traced route, are nearly 35 feet above this surface level, and as the adjacent country presents no visible impediment to the con- struction of the canal toward this point, it appears prac- ticable to cross this stream by an aqueduct extending from its second bank on one side to the second bank on the other, a distance of, say 600 feet. Although the piers necessary to be constructed, to support the aqueduct, will obstruct the natural current of the stream, and thereby occasion a trifling accumulation of water above them, yet, as the aqueduct may be raised ten feet above the estimated rise of water, the ef- fect of the accumulation, it is presumed, will be too incon- sideral)le to threaten any disastrous results. Were it de- sired, however, to construct a dam across this river, and on each side to connect the canal to the reservoir thus formed, it is believed that a position favorable to this view may be selected; but taking into consideration the inequable stage of the water in this, as also in all the rivers in our route, whenever it is practicable, it is most assuredly advisable, 3621 in constructing the canal, to pass the rivers by aqueduct in 1077 preference to passing them by dams. Then, should any part of the water be required to feed the canal an inconsiderable dam at some convenient point, above the aqueduct, may be constructed and the requisite supply of water drawn from the reservoir by a small side canal of sufficient capacity to convey the quantity of water required. The next stream in our route of sufficient magnitude to claim our attention, is the river Aux Sable, 1 c 56 wide, and at its present stage, furnishes in round numbers, say 60,000 cubic feet of water in an hour. Judging from the position of the drift wood on its shores, and in the branches of the tim- ber on its banks, it is evident that this stream, at the times of high water, rises from 12 to 15 feet above its present sur- face level. Here an aqueduct of about 320 feet long and 20 feet high will be required. Then by selecting a suitable position higher up the stream and constructing a dam across it, the canal may be fed by its waters, as in the case sug- gested by the Fox River. This river is 28 ms. 48 chs. 27 above Fox River, 43 ms. 3 chs. 11 from the point of be- ginning; 4 ms. 18 chs. 92 below the confluence of the rivers Desplaines and Kankakee, which form the river Illinois. In passing from the River Aux Sable 8 mi. 31 c. 53, on our route we meet with the river DuPage, a beautiful stream of water 66 feet wide, and furnishing 114,000 cubic feet of water in an hour. The maximum perpendicular rise of the water of this stream may be taken at, say 15 feet. Here an aqueduct, 320 feet long and 20 feet high will be required and a dam and side canal, for a feeder, as in former cases. From the river DuPage, passing on 19 M. 28 c. 46, we touched the river Desplaines, at Cache Island, that river is ascertained to furnish 117,000 cubic feet of water in an hour; then 18 m. 56 c. 60 fufRier we reach the point B at the ford of this river, which here is 3 c. 34 wide, and furnishes 72,000 cubic feet of water in an hour. From this point we proceed on 7 ms. 52 c. 92 to the head of the Chicago River, on nar- row arm of Lake Michigan, 5 m. 2 c. long; a natural canal, averaging say, 2 c. 50 in width, and having at no place be- tween the bar at its entrance into the lake and its head, less than 12 feet of water. It must be observed that as the above results are predi- cated on the present stage of water, and as the quantities, at different periods, is considerably variable, and may prob- ably, at some times be lower than at present, it is advisable, that on the route which may be selected by the Commis- sioners, the results should show a surplus of water sufficient to answer this probable depreciation. 3623 Sd. The description and nature of the earth and rocks on the route traced on the map. From the cursory examination the undersigned have been 1078 Post and Paul Report— Continued. able to* give on the subjects embraced under this head, hav- ing been limited to a passing view of the mere surface of the route, and the broken sides of ravines which occasionally presented themselves, they are fully sensible that they here offer to the Commissioners a very imperfect sketch of the varieties of the earth, soil, pebbles and rocks that would be met with in a deliberate, scientific examination of this sec- tion of the country. The earth in some of the small valleys is alluvian and in others gravel and sand, apparently washed from the neigh- boring bluffs, or adjoining ridges. The ridges present some varieties; many of which, especially in the middle and upper part of the route, are sand and gravel ; others are loam with occasional strata of clay; and the sides of the ravines fre- quently exhibit argellaceous appearances, and in some in- stances, assume a slaty texture; but considering the earth, en masse during the entire route, it may be considered of a quality favorable to excavation. On the greater part of the distance' there are, in the valleys of the rivers, loose rocks of various sizes, from those of a finger stone to those of sev- eral tons weight, promiscuously scattered over the surface. In several parts of the route, especially in the vicinity of the Fox Elver, ledges of rock make their appearance, but in ultimately locating the canal the greater part, if not all these visible ledges, may be avoided; but as the base of the country, from the foot of the rapids of the Illinois to the ford of the Desplaines is probably rock, it is presumable that wherever the canal may be located, in the requisite ex- cavations, ledges of rock will intercept the line and present themselves to view above the bottom of the canal, hence in estimating the probable expense of excavation, this suppo- sition should be duly regarded. The principal ingredient in the composition of these rocks, especially those in the ledges, is sand; some, however, are silacious and very hard, which is almost invariably the case with these loose stones on the surface; some are calcareous and some are apparently ])ure sand, and are readily decom- posed by the light stroke of a hammer. In the vicinity of Fox Elver, and between that stream and the coal bank, there are several of those ledges, and on the surface we observed frequent clusters of stones apparently thrown to- gther by art, having a considerably thick coat of calcareous substance,, containing a perfectlv silicious nucleus. In the bluffs of the Illinois about one mile and a half below the Little Vermillion is, to all appearances, an extensive body 3625 of gray limestone, and in the bluffs of the Desplaines, above Mount Joliette, large (|uantities of similar stone are ex|)osed to view. At several other intermediate points we discov- ered a species of calcareous sandstone, tolerably hard, granu- 1079 lar in their texture, and will probably make lime, l)ut of very interior quality. However, from the ledges of grey limestone above noticed, and from the bed of the limestone, near the bank of the Chicago Kiver, from which the inhal)i- tants in that section of the country obtain their supply of this article, it is supposed a sufficient quantity of lime’ and building stones may be ])rocured for the construction of the locks that may be required on the canal. 4th. The prohahle quantity of excavations, embankments and grubbing on the different routes. What the undersigned idenqminate different routes, are the variations which may be given to the up])er ])art of the route lying between the head of the Chicago Kiver and the ])oint in the River Desplaines, near the head of lie a la Cache or Cache Island. From this point to the mouth of the Little Vermillion, all the routes ai*e the same, excepting in that from A to H, by which it is contemi)lated to use the water of Lake Michigan alone for a feeder. By this route, after passing the Desplaines l)y an acjuediict at H the canal will communicate with the princpjal line at K, and thence proceed to the mouth of the Jjittle Vermillion. To avoid tautology and circumlocution in our subsequent observa- tions, relative to the variations here indicated, we will de- nominate the route from the head of the Chicago l)y the ford of Aux Plaines to B, and thence lA K, to l)e the frst route: that from A to P, thence along the bed of the river to Cache Island, and thence to I, K, &c to be the second route; that from A to S, thence in the bed of the river to Cache Island, and thence by I, K &c to be the third route; that by A to Cache Island, I, K to he the fourth route; and that from A to H, K &c to be the ffth route; by taking the first route the whole line of the communication must be formed by dams, aqueducts, excavations and embankments. Now, if we suppose l-lOth of the distance, or ten miles, to l)e embank- ments; l-30th of it, or three miles excavation in rock (which is supposed in each case to be a liberal allowance) and 1320 feet of aqueducts, and 500 feet of dams, the remaining ]^art of the distance will fall on ground easily excavated. Then by assuming the aclivity and declivity of the surface to be equable, a supposition that may be nearly realized in the ultimate location of the canal, it is believed the deep cuttings that will be absolutely required, will be compensated by supposing the whole capacity of thq canal, to-wit, 40 feet wide 3627 at top, 28 feet wide at bottom, and four feet deep to be ex- cavated. The small quantity of timber to be met with, on the route traced on the mao, all lying below the diverging lines at Cache Island, the quantity of ^-rubbing, in all cases here considered, will be the same, which we suppose to be in all five miles. 1080 Post and Paid Report. — Continued. Assuming tlie above estimates as data, the whole line being 97 ms. 2 c. 62, we have on this route. Excavations in earth 83 ms. 58 c. 26 do in rock 3 Embankments 10 Grubbing 5 This route supposes a canal, from the ford of the Des- plaines to the head of the Chicago, to be supplied from the water of the Aux Plaines, excepting what may be drawn to it from the small lake called the Lac de la Pointe Aux Chenes, or Oak Point Lake, lying near the summit leve] the route. This lake is supposed to be supplied from water from the springs in the marshy ground around it, and as it is higher than the water of the Chicago, no difficulty exists in using its water to feed the canal. Then the other part of the route, as far down as the River DuPage, must necessarily be sup- plied by the water of the Aux Plaines above the ford, and such as may drawn to it from the .spring brooks in the route. 3628 By taking the second route, the distance from P to Cache Island, 18 ms. 56 c. 60, will be in the bed of the river, in which 100 feet of rocksj lying in stagnant water, must be removed; then deducting from the distance from P to Cache Island from the distance of earth to be excavated, we have for this route. Excavation in earth 65 ms. 1 c. 66 The excavation in rock, embankments and grubbing the same as before. In this route, the canal between the head of the Chicago and Aux Plaines may, more evidently than in the former case, be fed by the small Lac de la Point Aux Chenes. By the third route, the distance from A to S, just above the Saganashkee, must be excavated, and that part of the canal supplied from the river Desplaines and the waters of the lake of the Saganashkee, in the immediate vicinity of that part of the canal. From this point to Cache Island, the bed of the river will be followed 9 m. 32 c. 60. Deduct- ing this distance from the whole extent of the excavation in earth, we shall have on this route. Excavation in earth 74 ms. 25 c. 66 The excavation in rock, embankments and grubbing, the same as before. Sunposiug this route to be taken, the same 100 feet of rock in the bed of the river, mentioned in the last 3629 route, must be removed, in order to insure a ready and safe passage for boats at all stages of water. By the fonrtk route, we have the 'same extent of excava- tion as in the first, however, it is probable, that in this the digging will be easier but more deep cuttiug than in the 1081 first route, consequently estimating it the .same, we have for this route the same results as for the first. This route supposes the water to be drawn from Lake Michigan, and at the head of Cache Island, where the surface water level is 3 ft. 8 in. 7, below the surface water level of the lake, to mingle with those in the reservoir formed by the dam at this place. On this supposition, the excavation will naturally form an artificial river between the head of Cache Island and the lake, which will alternately fiow from and to the lake, as the waters in the Eiver Desplaines may be low or high. In this route it will be observed that the digging will necessarily pass through the marsh of the Saga- nashkee, or British Swamp. By the fifth and last route the object is to use the water of Lake Michigan alone to supply the canal, in consequence of which it will be necessary to continue it on the south side of the river till the river has acquired a sufficient descent to enable the canal to be carried over it by an aqueduct which will be at a point about eight miles below Cache Island. This 3630 aqueduct, it is supposed, will be about 500 feet long and 30 feet high; hence, on this route also we will have the same excavations, embankments and grubbing as in the first, to- gether with the additional expense of the aforesaid aque- duct. But all the dams required on the other routes may be dispensed with on this. 5th. The number and description of aqueducts^ dams and adverts that ivill prohahly he required. Whichever of the above mentioned routes may be selected by the Commissioners, it is supposed that the final location of the canal may be such as to avoid the greater part of the deep ravine to be met with on, and in the immediate vicinity of, the route leveled ; in consequence of which, and on the supposition that a number of culverts may be taken in the ratio of two to each mile, we shall have, for the first route, Aqueduct at Fox River, say 600 feet long. 30 feet high ditto at Aux Sables 360 ditto 20 ditto ditto DuPage 360 ditto 20 ditto Dam at B. on Aux Plaines 300 ditto 4 ditto ‘‘ Aux Sables 100 ditto 4 ditto DuPage 100 ditto 4 ditto Culverts, say 200 By the second route, we shall have the same aqueducts, and the same number of dams as above, except the dams across the River Desplaines, in the place of being at the ford, will be at the head of Cache Island, and the number of culverts will be say, 162. By the third route, the aqueducts and dams will be the same as in the second route, but the number of culverts will be say, 174. 1082 ^ Post and Paul Report.— Continued. By the fourth route, the aqueducts and dams Avill l)e the same as in the former case, but the number of culverts will be say, 142. This supposes no culverts from Cache Island to the Chicago. By the fifth route, in addition to the aqueducts supposed for the former routes, respectively, we shall have one at the Little Rock, on the River Desplaines, 500 feet long and 30 feet high. On this route all the dams, as before observed, may be dispensed with, and the number of culverts will he the same as in the first route, which was estimated at 200. 6th. The probable number and description of lochs and moles. It has already been observed that from Cache Island to the mouth of the Little Vermillion, there is a descent of 154 ft. 3 in.; that from the ford of the River Desplaines to the 3032 same point, there is a descent of 169 ft. 3 in. fl) ; that from the ford to the head of the Chicago River, there is a descent of 11 ft. 3 in. 7 ; that from the head of the Chicago River to the Little Vermillion, there is a descent of 157 ft. 11 in. 7 ; and from the head of the Chicago River to the Cache Island, a descent of 3 ft. 8 in. 7 ; hence, liy the first route we have the ascent of 169 ft. 3 in. 4, and a descent of 11 ft. 3 in.; giving an aggregate of 180 ft. 7 in. 1. Now, observing the small inclination^ of the planes of the ascent and descent, and reflecting on the general uniformity and equability of the surface of the country, it is supposed the intermediate locks may he located at very nearly equal distances from each other, in consequence of which the maximum inclina- tion of the bottom of the canal should not, on any account, exceed one inch in a mile. Assuming this maximum as a datum, we shall have on this route, 172 ft. 6 in. of lockage, exclusive of the entering lock at the lake, should that he eventually desired, and such guard locks as may be neces- sary. From these results it follows, that on this route there must he, 22 locks of 7 ft. 10 in. one lift each, and probably 11 guard locks. These guard locks will he located as follows : one on each 3633 side of the contemplated dam at the ford; two at the sup- posed feeder from the lake of the Point Aux Chenes; two at the ])ro]:)osed feeding canal at the River DuPage; two at that of the River Aux Sable; and, say three small ones at tlie si)i'ing l)rook whose waters may he required to feed the canal 1)etween the ford and the DuPage; and if it should he found necessary, two others at a feeding canal from Fox River; however, it is believed that these will never he re- (juired. By the second route, we have an ascent from the Ifittle Vermillion to Cache Island of 154 ft. 3 in., and from the ])oint P to the head of the Chicago a descent of 11 ft. 3 108 :] in. ; giving an aggregate of 165 ft. 6 in. Then, assuming the same inclination for the bottom of the canal as in the former case, there will result in ascent and descent 157 ft. 5 in. of lockage, giving as follows: 20 locks of 7 ft. 10 in. 4 and probably eight guard locks. These guard locks will be located as follows: one at the Eiver Desplaines at P; two at the supposed feeder of the lake Point Aux Chenes; one on the north side of the reser- voir at Cache Island and from this to the lower end of the route the same guard locks as mentioned from the DuPage to Pox River inclusive. By the third route, we have at Cache Island an ascent of 3634 154 ft. 3 in. and from S to the head of the Chicago, a de- scent of 11 ft. giving an aggregate of 165 ft. 3 in. Then, as- suming as before, for the inclination to he given to the bot- tom of the canal, we shall have an ascent and descent 157 ft. 2 in. of lockage, and consequently, 20 locks 7 ft. 10 in. 3 lifts each, and probably 8 guarcj locks. In this route the guard locks from the Cache Island to Fox River, inclusive, will be the same as in former cases, but for the upper part of the route we shall have a guard lock at S, on the Desplaines River, and one, or prol)ably two, for the feeding canal, from the Lake of the Saganashkee. By the fourth route, we have the ascent to the Chicago equal to 157 ft. 11 in. 7 — deducting from this 3 ft. 8 in. 7, the ascent from Cache Island to the Chicago, we have 154 ft. 3 in. for the ascent to Cache Island, as before shown, con- sequently, on this route, making the same assumption for the inclination of the canal, as before, we shall have 140 ft. 3 in. of lockage, which will recpiire, 10 locks of 7 ft. 10 in. 6 lift each — and ))robably five guard locks. In this case, it is probable that all the guard locks re- (piired will be those already designated on the routes be- tween Cache Island and Fox River, inclusive. Should any others be required, they will evidently be located as follows: one at the head of the Chicago River, and one on the south side of the reservoir at Cache Island. By the fifth and lost route considered, the entire ascent, as before,. is 157 ft. 11 in. 7, which, supposing the inclination of the canal as in the former cases, will give 149 ft. 10 in. 7 of lockage, and require, 19 locks of 7 ft. 10 in. 6 lift each. Adhering in this route to the supposition of obtaining from Lake Michigan the entire water sup])ly to be used, it is probable that all the guard locks required will be one at the head of the Chicago River, and if required and found practicable to construct, another in the Saganashkee. 1084 Post and Paid Report. ^Continued. In all the routes above suggested, the horizontal plane of the lift locks are supposed to be the same ; for example : Length 76 feet Breadth 14 ditto at each end, having -a batter on each side of the lock of half an inch in each foot perpendicular height; The horizontal section of its sides being extremely flat elliptical arches nearly approximating right lines, the chords being respectively 76 feet, and each fleclie ^ of an inch for each perpendicular foot of the height of the lock. Such is the plan of the principal locks on the New York Grand canal. This peculiar construction being adopted, without doubt to give more strength to the sides of the locks, and, thereby, to enable them to more effectually sustain the lateral pressure of the adjoining earth. But on the supposition of the cavities being left, or substantially occurring in the rear of the ma- sonry, this precaution to acquire strength and give stability to the lock would absolutely weaken it, and leave its sides more exposed to the pressure of the water in its chamber, than would be experienced by having the walls of the cham- bers straight and perpendicular. The effect of the elliptical form and batter of the sides of the locks has been experi- enced in the canal of Languedoc, and subsequently avoided in the straight and perpendicular sides given to the cham- bers of those given in the canal of Picardie, in the Gravilines, and in many others constructed on the continent of Europe. Another and very important advantage possessed by the locks with straight and perpendicular siues, is the additional facility, and reduction of expense attending their construc- 3637 tion; a consideration at all times, where absolute utility, instead of ornament is consulted, worthy the most serious attention. The next subject claiming investigation is the manner in which a convenient and sure entrance may be had into Lake Michigan. On this point there has been considerable di- versity of opinion expressed by persons visiting the place; some of whom, on examination of the sand bar formed by the operation of the surf of the fake in front of the mouth of the Chicago Eiver, have considered the formation and continuance of a navigable inlet into the river, to be a hope- less task, the prevailing winds having a tendency to accumu- late sand on that shore; but reflecting on the improvements, from time to time, made in the harbor of Dunkirk, as a par- ticular example, the reflecting mind will readily assent to the practicabilitv of the achievement. To ascertain the probable expense of effecting this object, the undersigned have sounded the lake sufficiently far from the shore to obtain a depth of 15 feet of water which is sup- 1085 posed to be sufficient for any of the vessels navigating the lake. Influenced by the result of these observations, the un- dersigned recommend to the consideration of the Commis- sioners the construction of a double mole, or wharf, such as are constructed on the shores of our seaport towns, hav- ing a space between them of, say 40 feet wide, for the passage of vessels from and to the lake, as shown on the sketch of that harbor herewith presented. The exterior part of this mole, or the part between the sandbar and the point in the lake wdiere the requisite depth of water is obtained, should be 40 feet at the bottom, 20 feet at top, and 20 feet high. The interior part, passing through the sandbar and entering the Chicago River, may be 20 feet at bottom, 10 feet at top, and 20 feet high. Then, as the exterior distance is 18 chains, and the interior 8 chains, we have, for the entire contents, 371,360 cubic feet, which computed at the rate of cents, the cubic foot, will give $54,460 for the expense of construction. Again, if we suppose the whole interior distance of 8 chains long and 20 deep, to be excavated, we shall have to remove 15,644 cubic yards, which computed at 10 cents the cubic yard,' will amount to $1,564.40; or, say, in round numbers that the mole completed will cost $57,000. This project once effected, the Chicago River, for five or six miles in length, will afford one of the finest and most secure harbors in the world; for here vessels, drawing from 15 to 20 feet of water may ride perfectly secure from the destructive effects of storms and tempests. In locating this projected mole, on the sketch of 3639 the harbor, the undersigned have been governed by the direc- tion of the prevailing winds on that lake, and, consequently, to secure its entrance from the severity of those winds have given it the oblique direction there shown. 7th. The probable expense of construction, including the different routes designated on the plat. The Commissioners will be aware, that in the estimate here presented of the probable expense of constructing the con- templated canal, considering the present stage of operations, merely approximate values are to be supposed; for absolute correctness cannot be expected, even after the final location, nor until it shall have been entirely completed. However, the undersigned, in obtaining these results, have duly compared and deliberated on both the propitious and adverse features which their operations and cursory examination of the country have presented to them in relation to the object in view, and have thence drawn the data used in their computation. From the preceding investigation, we obtain, for the first route, as follows: 108() Post and Paul Report. — Continued. 3()40 Excavation in earth 2,217,017 cubic yards a 10 cts $221,701.70 a 50 a 18 ditto in rock 79,875 do Embankment 265,950 do Three aqueduct (stone piers and trunk of wood) 1,320 linear feet Three dams in all 500 do a 7 22 locks, of 7 ft. 10 in. 1 lift each a $1,000 per ft. 11 guard locks (average value $2,500) Mole at Chicago 200 culverts a $200 Grubbing five miles a $1,200 per mile Sum Contingent expenses, say 5 per centum 39,937.59 47.851.00 66,000.00 3,500.00 172,500.00 27.500.00 57.000. 00 40.000. 00 6,000.00 $682,010.20 34,100.51 Total amount $716,110.71 Eor the second route, supposing the excavations on rocks, the embankments, aqueducts, dams, mole and grubbing to be the same in the above, there will remain to be deducted from the net amount there shown, the following sum to-wit : Excavation in earth 502,385 cubic yards a 10 cts $50,238.50 15 ft. 1 in. of lockage a $1000 15,083.33 Sum Estimate of first route Deduct the above sum Remainder Add for contingencies 5 per cent $72,921.83 $682,010.20 72,921.83 $609,088.38 30,454.41 Probable cost of second route $639,542.78 For the third route, making the same supposition as in the last case, there will remain to be deducted, from the esti- mate of the first route, as follows: Estimate for the first route $682,010.20 Deduct for excavations in earth 250,105 cubic yards at 10 cts $25,010.50 Deduct lockage of 15 ft. 4 in. at $100 $15,333.33 26 culverts at $200 5,200.00 45,543.83 $636,466.37 31,823.31 To this add 5 per cent for contingencies Probable expense of third route $668,289.68 1087 For the fourth route, take the estimate of the first route $682,010.20 From which deduct, for 6 guard locks of $2,500 each $15,000 58 culverts a 200 11,600 24 ft. '3 in. lockage a $1000 24,250 50,850.00 Remainder $631,160.20 Add for contingency 5 per cent 31,558.01 Probable cost of fourth route $662,718,21 For the fifth route, take the estimate of the first route $682,010.20 To this add for one aqueduct 500 feet long $25,000 25,000.00 Sum $707,010.20 From this deduct for 22 ft. 7 in. 3 of lockage a $1000 $22,608.33 10 guard locks a $2,500 25,000.00 3 dams 500 ft. a 7 3,500.00 51,108.33 Remainder $656,901.87 Add for contingencies 5 per cent 32,845.09 Probable cost of the fifth route $689,746.96 That is, the probable expense of the will be first route $716,110.71 second route 639,542.78 third route 668,289.68 fourth route 662,718.24 fifth route 689,746.96 8th. The practicahility of construction, inclucling the dif- ferent routes. The only requisite to insure the practicability of effecting a canal navigation over any section of the country, is a com- petent supply of water on the summit level of the desired route. The competency of water, on the summit level, being an indispensable condition in the successful construction of canals, it remains for us to examine whether it can be obtained in either, or on all of the respective routes herein suggested. On the first route the entire demand to supply the canal from the head of the Chicago Eiver to the River DuPage, must be drawn from the River Despl nines at the ford, from the Lake De la Point Aux Chenes, and from .such spring brooks as lie in the route between the ford and the DuPage. In the first place, assuming the dimensions of the locks as above shown, to-wit: 76 feet long and 14 feet wide, having straight and perpendicular sides, and supposing the canal 1088 Post and Paul Report. — Continued. to be full, the passage of each boat will require 8,512 cubic feet of water; then, if we suppose the time required for tilling and discharging the lock and passing the boat to be 15 minutes, we will require for both branches of the canal, emanating from the reservoir at the ford, 68,096 cubic feet in an hour. 3644 To this expense must be added the water lost by evaporation, leakage and absorption. Now, the distance from the DuPage to the ford being 38 ms. 05 c. 06, and from the ford to the head of the Chicago, being 7 ms. 52 c. 92, giving an aggre- gate of 45 ms. 57 c. 98, and the canal being supposed 40 feet wide at the surface of the water, w^e shall evidently have a surface of 9,657,067 square feet of water exposed to the action of the sun and atmosphere. From this surface, agreeably to the average of experiments, there will each hour be dissipated by evaporation, 3,212.3 cubic feet. Then, if we suppose the like quantity to be lost by leakage and absorption, we shall have for an hourly aggre- gate demand 74,520.6 cubic feet. Now, as the Desplaines Biver has been ascertained to fur- nish in each hour 72,000 cubic feet, and if we add to this 1,000 cubic feet which the Lake de la Pointe Aux Clienes is sup- posed capable of furnishing in an hour, and 22,500 cubic feet which it is supposed may be drawn from spring brooks, to be met with on the route, between the ford and Cache Island (it being half the accession being found between those two points) and 6,000 cubic feet receivable from other small streams, between Cache Island and the DuPage, we shall have an hourly fund of 101,500 cubic feet, hence the probable hourly surplus of water on this route may be estimated at 26,980, or in round numbers say 27,000 cubic feet. It must be observed 3645 that these estimates are predicated on the supposition that boats are passing and repassing in as rapid a succession as practicable, a supposition which should, indubitably, obtain when we seek for general results and maximum effects. The distance above determined is the only part of the route on which the least apprehension of deficiency of water can exist, for the DuPage, furnishing 114,000 cubic feet and 8 ms. 31 c. 53 below it the Aux Sable furnishing 60,000 cubic feet in an hour, all of which is subject to the use of the canal, gives posi- tive assurance of an abundant supply for the remaining part of the route. By the second route, we commence with the quantity of water furnished, in an hour, by the Biver Desplaines at Cache Island, 117,000 cubic feet, and to this add the 1,000 feet an hour supposed obtainable from the Lac de la Point Aux Chenes, and 6,000 cubic feet from the springs above DuPage, as before, which gives an hourly aggregate fund of 124,000 cubic feet. Assuming the evaporation, absorption and leakage 1089 to be the same in this as in the former route, and computing the quantity required for the upper part of the route to be 34,048 cubic feet an hour, there will remain, subject to the . demand of the route lying between Cache Island and DuPage, an hourly fund of 83,479 cubic feet. Now, this demand was 3646 supposed to be 34,048 cubic feet, consequently, on this route there will remain an hourly surplus of 49,527, say 49,000 cubic feet for that part of the canal above the Eiver DuPage, below which, as before shown, there is the greatest abundance. By the third route we have the same quantity of water as in the second, with what may perhaps be obtained from the Lake of Saganashkee, which we will suppose to be 3,000 cubic feet in an hour. Then suppose the demand, in all respects _to be the same as in the former cases, there will remain on the route above the DuPage, an hourly surplus of say 52,000 cubic feet. By the fourth and fifth routes, the first of which supposes the canal to be supplied both by Lake Michigan^and the Eiver Desplaines, and the second by Lake Michigan alone, all de- sirable quantities of water are at command; but relative to the entire practicability of constructing a canal on either side of these two routes, the undersigned cannot hazard an opinion without previously examining, with more care than they have yet been able to, the country in the vicinity of the Saganash- kee; for the only apparent objection to either of them emanates from the probable necessity of passing through the lower end of it. If this swamp cannot be avoided by some cir- cuitous route, the difficulty and expense of constructing a 3647 canal through it, will in all probabilitly, be very great; and even then, since this point is, say 10 feet higher than Lake Michigan, success in preserving the canal from inundation ^•md imminent danger of destruction from the high water of the swamp and its lake, will be extremely doubtful. 9tli. Observations and remarks. By the preceding estimate, omitting, as will be noticed in the estimates of the two last routes, the additional expense that would be necessarily incurred in crossing Saganashkee, the average cost per mile, of the several suggested routes will be nearly $7,000. Comparing this with the cost of other canals particularly the Middlesex Canal, which absolutely cost, ex- clusive of the land through which it passes, $13,374 per mile, and the New York Canal, by estimation $10,500 per mile, as also with others in Europe, the expenses of whicfi have been enormous; and, at the same time considering the relation of object effected by many of those already constructed, and to be effected by that now in contemplation, the mind is forcibly impressed with its great importance, and with peculiar pleas- ure rests on the period when a canal navigation between Lake Michigan and the Illinois shall have been achieved. 1090 Post .mid Paul Report. — Continued. 3648 Many and, indeed we may say, nearly all, of tlie canals that have been constructed, except those in the State of New York (the ultimate effect of which are destined to embrace objects of greater importance), are for the purpose of facilitating the communication along an accustomed highway ; opening to com- merce no new field — giving to agriculture no new excitement; but in relation to the intercourse between the Illinois ancl Lake Michigan the case is widely different. Here the canal will not only furnish a safe and expeditious mode of convey- ance between two important points, but to open the western states a new and additional market, and, by the recip- rocal advantages afforded excite their citizens to industry and enterprise. It will, in truth be adding one of the most important links to the American commercial chain, which must, by its effects, bind together the respective interests of the Atlantic and western states; consolidate the commercial and political policy of the most distant parts of the Union, and give to the patriot a grateful theme. The western states, separated from the eastern by the Alle- ghany Mountains, are confined to New Orleans alone for a market for the immense surplus of produce they do and may supply, much of which is liable to almost immediate injury from the humidity and heat of the atmosphere of that climate. 3649 Long has this cheerless prospect been to the farmers of the west, and long have they anxiously looked for an era more propitious. That this desideratum may be realized; that a new and advantageous market may be opened for the various productions of this fertile region, and that we may, by the artificial direction given to the waters of our lakes and rivers, reciprocate with others the advantages derivable from com- mercial intercourse, the preceding detail of results authorize the presumption. All of which is respectfully submitted. Justus Post K. Paul Vandalia, December 25, 1824.” Counsel for defendant also read in evidence the following from page 73 of Canal Commissioners Keport 1900: 3651 ‘‘To the Honorable Board of Canal Coinmissioners of the State of Illinois: Gentlemen: In compliance with your instructions, I now lay before you the result of the surveys and examinations confided to me on that part of the proposed route of the Illi- nois and Michigan Canal, which is included between its en- trance into the Chicago Kiver and the western margin of the Ausogamashkee swamp, made with a view to its permanent location upon what has been considered the only practicable 1091 plan of obtaining a sufficient supply of water for the use of the summit level, assuming the bottom of the canal at its head to be four and one-half feet below the level of Lake Michigan. From the mouth of the Chicago River to the point fixed upon as the entrance to the canal, there is no obstruction what- ever to its navigation by boat drawing under five feet for that distance, which is five miles, this river forms a perfect natural canal, its banks being low and of uniform heights and its waters supplied by the lake. Leaving the river at the point above mentioned, the line of the canal inclines toward the Regula (as will be seen by a reference to the accompanying man), and follows along the margin of the portage lake until it strikes the River Des- 3652 plaines at the ford a distance of nine miles; the excavation throughout this distance will pass through a hard ferruginous clay (as has been ascertained bv borings) at an average depth of 15.41 feet.’’ From page 74, I read: ‘‘The River Desplaines when low affords a very inconsid- erable quantity of water, but the Calimic River which empties into Lake Michigan about 12 miles south of Chicago, furnishes an abundant supply (320,000 cubic feet per hour) and in every respect, so far as my observation extends, advantageously situated as a feeder. Too much time was necessarily con- sumed in the survey of the line of the canal to admit of as particular an examination of this river as from the facts col- lected respecting it, it undoubtedly deserves.” On page 96 begins a report of the same Mr. Bucklin: (Objection.) “Sir: Your instructions respecting the continuation of the survey of the route of the canal, and the examinations neces- sary to a correct understanding of the adaptation of the country between Lake Michigan and the Illinois River to the respective improvements under consideration, were observed early in the spring of 1831 by an examination into the prac- 3653 ticability of making the Calamic River tributary as a feeder to the Illinois and Michigan Canal. Its successful result, al- though highly important as a means of avoiding a great source of expense in the event of the construction of the canal, was lessened in value by the development of unexpected obstacles, over which it had no control, in the process of a subsequent survey of the remaining part of the route of the canal from the termination of the survey of 1830 at the Ausoganashkee swamp to the navigable waters of the Illinois River. The discharge of the Calamic River in the fall of 1830, a season of extreme drought, amounted to 320,000 cubic feet 1092 Extract, — Cai}. Com. Rep. 190^.— Continued. per hour, which may be safely relied upon as its minimum discharge. This quantity was considered sufficient for the upper portion of the canal, but by the late survey the length of the canal to be supplied from the summit until relieved by the River DuPage proving to be much greater than was anticipated, an additional supply of 102,400 cubic feet per hour will be required for its consumption. The River Des- plaines in most seasons, would alone make up the deficiency, but in the fall of 1830 its discharge was at one period reduced to 60,000 feet per hour. Relying upon its contributing this quantity of water in the driest seasons, there will still re- main a deficiency of 42,400 cubic feet for which there is no 3654 resource but the establishment of an artificial reservoir on the summit level. The Ausoganashkee swamp presents great advantages for this purpose as it receives the drainage of the country to a great extent, and is susceptible at a comparatively smu^ll expense, of being rendered more secure from breaches and other casualties than most works of a similar descrip- tion.” On pages 91-2 of same report: ”It has been also proposed to effect a water communication between the lake and the Illinois River by means of dams and locks in the Desplaines, forming a still water navigation, knowing the minimum discharge of this river the imprac- ticability of the scheme is so evident that the subject is here noticed more as a matter of form, than with any expectation of rendering it clearer. It will be recollected that the quan- tity of water provided for the passage of 96 boats over the summit level every 24 hours in the canal, is 86,400 cubic feet per hour, that is one lock chamber full of water every 3655 fifteen minutes, ascending and descending. The minimum discharge of the River Desplaines is only 60,000 cubic feet per hour. Of course, it is not competent to supply even the lockage (which on this plan cannot be less than that required for the canal) without taking into consid- eration the loss by evaporation and leakage, which would alone consume at least seven times the quantity of water discharged by the River Desplaines at its lowest stage.” On pages 135-6 same volume, a letter from Mr. Bucklin to Chair- man of Senate Committee on Canals: “Not being an engineer nor familiar with the calculations in relation to the quantity of water required to supply a canal of the size contemplated, I take the liberty of asking your assistance, and request the favor of you to review the calcu- lations heretofore made by yourself and others in reference to the quantity of water in the Calamic, and to state the quan- tity required for the canal as at present proposed to be con- 109 :^ structed. lou will also state if there is anything peculiar in the nature of the country, to justify the erecting of a canal without providing the usual quantity of water for evapora- tion and leakage. All the documents, except the report made by you in 1830, will be furnished if desired. Very respectfully. Your obedient servant, Wm. Thomas, Chairmiui of the Committee on Canals, etc.’' What 1 propose to offer is, first showing how this report came to be written : ‘‘Sir: It will give me great pleasure to afford you any 3657 information that I may possess in relation to the interest- ing subject which you have before you. I can, however, do little more than recapitulate the information that has been derived from various sources respecting it. The Kiver Desplaines was gauged, at Laughton’s Lord, by Messrs. Post and Paul, in the first survey that was ever made of the route of the Illinois and Michigan Canal, and the dis- charge found to be 72,000 cubic feet per hour. They also gauged it and the Cache Island, 18 miles below, when they ascertained the discharge to be 117,000 cubic feet per hour. In October, 1829, it was gauged by Dr. Howard, U. S. Civil Engineer, who places the discharge at 96,480 cubic feet per hour. At the same place (Laughton’s Ford) it was again gauged by Messrs. Harrison and Guion, on the 8th of August, 1830, and found to discharge 60,000 cubic feet per hour. The (Mlamic River was gauged by me in the month of September, 1830, and found to discharge estimated at 320,000 cubic feet per hour. It was also gauged by M. Guion, assistant civil engineer, in the service of the United States, about the same time, and the the discharge placed by him at 1,033,000 cubic feet per hour. It may be proper to remark here that the fall of 1830 was a season of extraordinary drought. On the Erie Canal in the State of New York, the supply not being very abundant in some parts of it, great care was taken to ascertain the quantity of water required to supply the evaporation and leakage in dry seasons, and it was determined 3658 by experiments that on the middle and western division 100 cubic feet per minute per mile was a safe estimate ‘with proper care in guarding against the waste of water’. On the eastern division 125 feet was required. On the canals in the State of Ohio, 100 cubic feet per minute was adopted as the minimum; and in the State of Indiana it has since been adopted as a standard in estimating the supply required for a canal of 40 feet surface, and four feet depth of water, except 1094 Extract, — Can. Com. Rep. 1900. — Continued. in one instance, where the canal passes through an uncom- monly wet region of country. The allowance of 100 cubic feet per mile per minute of evaporation and filtration was assumed by me as the basis of all calculations in deliberating the minimum quantity of water to be provided for the Illinois and Michigan Canal. The surface of the canal as at present proposed to be con- structed, is 60 feet, and bears the proportion of one and one- half to one to the surface of the canal as at first proposed. The depth of water is now six feet, whereas it was formerly four feet, consequently the pressure being as the squares of the heights, and the leakage nearly as the square roots of the heights, the pressure will be more than doubled, and the leak- age (taking into calculation the great surface) increases in proportion to one and a half to one. The quantity of water then that will be required to supply the evaporation and leak- age in a canal of the dimensions proposed, will he 150 cubic 3659 feet per minute per mile ; and with reference to the peculiar character of the country through which the canal passes, I know of nothing which will justify a departure from the estab- lished rule in regulating the supply of water. It is true, the upper level is situated in a very wet country, but the levels below dependent upon summit for water, are located on ground very badly calculated to retain it, and it is possible that more than the ordinary supply may be required. If the project of supplying the canal from Lake Michigan is abandoned, and the high level resorted to, the length of canal, including feeders, to be supplied with water on the upper level, is 56 miles, which will require 8,407 cubic feet per minute to supply evaporation, and leakage, and a further supply of 2,112 for lockage, making in all a minimum supply of 10,512 cubic feet per minute. Very respectfullv your obedient survant, J. M. Bucklin.'" Counsel for defendant also read the following report of Judge Benjamin Wright, an engineer, page 173: 3661 Dated Chicago, Oct. 23, 1837. '‘To the Board of Commissioners of the Illinois & Michigan Canal. Gentlemen : Having been appointed by your honorable Board, under the third section of the law of the State of Illinois March 2, 1837, to survey and examine the route of the canal as now established, with a view of ascertaining whether there is a sufficient quantity of water, with the legitimate authority of the State of Illinois, to use, to supply a canal of the same 1095 size and dimensions, as the one now contemplated to be con- structed upon the summit level of said line of canal; I have, in pursuance of the duties here appointed out, passed over the whole line of canal from Lake Michigan to Peru, examined all the plans and profiles, and received explanations and descrip- tions of every part of the work as projected and marked out, as well as all those parts now in progress of working under contract ; and I think I may say I have now possessed myself of a full knowledge of the details of the work, as designed by your chief engineer, in all its localities and hearings, upon the very important question of water, upon which I am required to act. 3662 It appears by the Act of the Legislature above referred to that ‘a supply of water from sources within the legitimate authority of the State of Illinois, was to govern all actions upon this matter, and that your Board had early directed such river to be more fully examined than had heretofore been done. From an examination of the various canal documents of the last session of the Legislature, it seems that the question stands as follows: Shall the feeding water be taken from Lake Michigan by a deep cut! Or shall the summit be raised 10 feet above the lake, and fed from streams to be brought into it! It has been supposed, and no doubt correctl^q that only three streams of water can be brought on the summit level; First, the Des- plaines Eiver ; then second, the Calumet Eiver ; third, the Fox Elver. The Desplaines was not in a proper situation to gauge, as there had been copious rains; I, therefore, take the former measurements of the United States engineers, as stated in the reports of the Canal Committee, at 54,800 cubic feet per hour. By calculation it is found that, if 12 boats pass per hour, the lockage water to lock up and down 10 feet will be 475,200 per hour. If we then add for leakage at the locks (a small item), and for the evaporation, we ought not to say less than 3663 500,000 cubic feet of water per hour will be required, when boats are passing as fast as they can be let through (or 12 per hour). It is true that, if boats passing each way were to meet so as to pass a boat up with the same water which passed one down, the only half above amount of lockage water should be estimated for the 12 boats per hour, al- though, I believe 12 boats per hour may be passed each way, if the locks are well attended, and are in perfect order for filling and discharging the water rapidly. These premises being admitted, we have to look for 445,200 cubic feet of water per hour more than the Desplaines gives us at low water. 1096 Extract^ — Can. Com. Rep. 1900. — Continued. Then on page 146: ‘'In the quarterly report of the Board, transmitted to the General Assembly in July, 1837, it was stated that the cor- respondence had been opened with Judge Wright, an emi- nently ‘skillful engineer,’ with a view of the surveys and examinations required by the 3rd section of the amendatory law passed in the previous March. In the meantime Mr. Burnett, who is the resident engineer of the 3rd division, was instructed to make a critical and thorough survey of the dividing ridge between the Fox and Desplaines Eivers, and within the limits of the state. This duty he performed with great care, eliciting information from every accessible source, and indulging those persons who desired explorations of par- ticular depressions previously supposed and asserted to be sufficiently low to afford a cheap feeder. Judge Wright arrived at Chicago in the early part of Oc- tober, and on the 20th of the same month, Mr. Burnett made a detailed report, with a topographical map, and estimate of the quantities of excavations and other work necessary to effect the object on the most favorable route of the country, was susceptible. At that time, and through the whole sum- mer, the Desplaines River was generally admitted to be un- usually flush, as was also the Calamic. Xo gauges were therefore, ordered, and consequently, those of the Desplaines made by the United States Engineers in 1830, and of the Calamic, by Mr. Bucklin, were adopted as the basis of the investigation. Keeping in view, however, that the truth of these gauges had been strenuously controverted by the ad- 3665 vocates of the upper level or ‘shallow cut’ and that capacity of the Calamic had been contended to be even superabundant, the attention of the examining engineer was particularly di- rected to the question, whether the Calamic could in any event be classed among waters which the law contemplated as ‘sources within the legitimate authority of the State of Illinois’; a question which his reputation for sound judg- ment in everything connected* with canaling, his knowledge of the requirements of Indiana dependent on the Calamic, and his great experience in the adjustment of similar claims, pre-eminently fitted him to answer with confidence. His ])lain, free and very decided report, marked ‘G,’ to which Mr. Burnett’s is appended, will afford all the information required by the statute which enjoined the examinations. But notwithstanding the opinion of the Commissioners, that the report of Judge Wright, — so completely confirming their original plan — should alone determine the mode of feeding the canal, they still thought it advisable to seize the first opportunity of regauging the summit streams, and examin- ing the suitability of the country for sustaining assistant reservoirs. The past dry season rendered the measuring of 1097 the Desplaines almost unnecessary, since, for nearly four months the tightest dam that could he erected, would not at 3666 the point for taking out the feeder, have saved water enough to propel a single pair of ordinary mill stones. Repeated gaugings from the 20th of July to the 22nd of August, and it was afterwards still lower, gave an average of less than the measurement of 1830.^’ Counsel for Defendant. I want to, in connection with this, to call attention also' to the Act of the revised statutes of Illi- nois of 1874, Section 265, “That all bridges now constructed, or hereafter to l)e con- structed, over the navigable portion of the Illinois River, there shall be built, and kept in good repair bridge pier booms.’’ 3667 Thereupon counsel for defendant introduced in evidence extracts from the following report of the Canal Commission- ers, dated December 13, 1838, addressed to his Excellency Thomas Carling, Governor of Illinois, read, page 20: (Objected to; overruled.) “From Norman’s Island to Dam No. 1, which is located upon canal land just above the Town of Joliet, two strong walls with embankments between them will be constructed upon the east side to confine the water in the pool of the dam. It is proposed to raise these walls and embankments seven feet above the comb of the dam, to be perfectly se- cure from the highest floods. From Dam No. 1 to Dam No. 2, a similar defense will be required to a much less height. Both dams will be made_of good cut stone masonry laid in 3668 hydraulic cement. Dam No. 1 will be connected with lock No. 5 which will be upon the west or towing path side. Here also a large amount of water power will be created, which at this point will be particularly valuable and confer great additional value upon the State property.” Counsel for Complainant. And I also ask your Honor, in this connection, that whenever I simply state “I object” it may be upon the ground of immateriality, and all other reasons which might be suggested. 3669 The Court. Very well. Thereupon counsel for defendant offered in evidence a cer- tified copy by Christopher Mamer, Clerk of the Supreme Court of the State of Illinois, the certificate being dated x\pril 1st, 1908, of a stipulation in the case of Philo A. Haven and Orlando H. Haven 1098 vs. Board of Trustees of Illinois and Michigan Canal, tiled in that office on the 11th day of June, 1849. (Objected to as immaterial; overruled.) 3670 Counsel for Defendant. There is a stipulation as to an order of the court; final judgment. I do not intend to read this entire stipulation, at least not at this time, but I offer it all in evidence. The Court. It may be considered as read. 3671 Counsel for Defendant. I think I will read the whole of it. Said document is as follows: ‘‘Philo AY. Haven & Orlando H. Ha- ven vs. The Board of Trustees of the Illi- nois and Michigan Canal. AYill Circuit Court ► October Term, A. D. 1848 The plaintiffs and defendants in this cause agree upon the following statement of facts to be submitted to the court for their decision thereon. 1. The plat hereto annexed numbered (1) is a plat of Section Sixteen in Township Thirty-five North of Eange Ten East of the Third Principal Meridian and also the plat of Section nine in the same Township being two plats of said section as returned by the Surveyor General of the United States and deposited in the land office at Chicago, on which said plat is represented the Desplaines River as it runs through said section. And it is admitted that said Desplaines River is meandered through the entire length of said sections as appears from the minutes of said survey in the said Surveyor’s Office, a copy of which minutes are also attached marked (2) and delineated on said map. It is also admitted that said Section Sixteen is one of the sections granted by Congress to the State of Illinois for the use of the inhabitants of the township in which the same is situated for the use of the schools and accepted by an or- 3672 dinance accepting certain propositions made by Congress April 18th, 1818. On the 26th of August, 1818. It is also admitted that the plat hereto annexed marked (3) is a true copy of the plat of said Section Sixteen and duly laid out and subdivided and certified and acknowledged and recorded according to law as set forth on said plat; and a plat of said river, and canal, with the dams, basins and locks, as made and constructed JProm Lockport 44 miles, above the said plain- 1099 tiff’s mill clam to and below plaintiff’s mills is hereto an- nexed marked No. 41. It is also admitted that at a sale of lots in said Section Sixteen in October, 1834, by and under the authority of the State in pursuance of the statute in such case made and pro- vided, John H. Kinzie, purchased lots one and two in block 57 and that patents issued to John H. Kinzie for the same in 1835 conveying title and fee simple as by law directed and that said John H. Kinzie conveyed to Martin H. Dem- mund and John M. Wilson his title as above stated and that Martin H. Demmund and John M. Wilson subsequently conveyed the same to the plaintiffs herein, lots one and four in block 56 were sold at the sale of said Section Sixteen in 1834 and were afterwards purchased by the plaintiffs for taxes and a deed bearing date obtained of the sheriff and they have until this time remained in undisputed possession of said lots except so much of them as has been appropri- ated by the Canal. It is admitted that the Illinois and Michi- gan Canal was commenced in 1836 and that portion of the canal through said section was put under contract in 1838 and the Guard Lock on Section Nine near the dam across said river just above said Section Sixteen was commenced in 1840 by digging the pit in the spring and a part of the stone laid in the fall. The stone for the same were quar- ried and dressed during the spring and summer of the same year. The stone Tor the said dam on Section Nine (which is a cement and cut stone dam) were commenced the same season and the dam was commenced the following season in being quarried and cut in the spring and finished in the fall of 1841, the contracts for building said lock and dam were made in 1839 and it was generally understood as early as 1839 that said lock and dam were to be built. It is agreed that in the spring of 1839 the plaintiffs commenced building a mill on said lot one in block 57 on Section Sixteen, and also a dam across the Desplaines Eiver connecting said lot one in block 57 on the east bank of said river with the di- vision line between lots one and' four in block 56 on the west bank of said river and completed said dam and saw mill so as to use the same in the following October or November. Soon thereafter the Commissioners of the Illinois and Michi- 3674 gan Canal in constructing said canal reserved the west end of said dam so that it became connected with the east bank of the canal, which bank encroached upon the material chan- nel of the river about ten feet. The head and fall at said plaintiff’s dam used by them in propelling’ their machinery is six feet leaving a fall on said lots one and two in block 57 of about six inches more. In the year 1842 the plain- 1100 Stipnlatiou , — Havru vs. Canal Com. — Continued. tiffs also built a grist mill on said lot two in block 57, also added to the saw mill a lathe miU in 1843 and built a dwell- ing bouse on said lot one in block 57 in 1846 and also a machine shop on said lot one in block 57 in 1847. Said mill and buildings have been used by the plaintiffs for the uses and purposes for which they were built from the time they were built as aforesaid till the 20th day of April, 1848. The water in said river being at times insufficient for all said ma- chinery. On the 20th of April, 1848, the defendants diverted or caused to be diverted into the Canal for the use of said Canal from the material channel of the river the whole or principal part of the waters of said river by turning the same from the basin made in said river by means of the dam on Section Nine being a canal section and about 4 mile next above the dam of said plaintiff so that the plaintiffs are 3675 wholly deprived of the use of the water at their said mills and have not since been able to run their machinery. From the time of imtting this ]3ortion of the canal under con- tract in 1838 and up to the year 1843 there had been no change in the original plan of su])plying the canal with water from Lake Michigan by the deep cut as originally contem- plated, and all contracts let previously to 1843. And all the arrangements of said canal were made notoriously upon the plan aforesaid and with a view to supply the canal from Lake Michigan. It is also admitted that the Desplaines Kiver is not navigable in fact although a portion of it is declared to be so by act of the Legislature, the work upoTi the canal commenced being sns]>ended in 1841 and was en- tirely suspended from 1842 to 1845. The (piestion of law arising from the state of facts is whether the plaintiffs are entitled to compensation for the injury and damage they have sustained in consequence of the diversion of the water of the Desplaines Eiver as aforesaid into the canal as afore- said, and it is stipulated and agreed that whichever way the judge decides said (]uestion either party shall have 30 days from and after notice of said decision to take an appeal therefrom or bring a writ of error to the Supreme Court if the said decision shall be made in favor of the plaintiffs by the Circuit Court and the defendants do not appeal there- from or bring a writ of error within the time aforesaid or if u])on appeal the Supreme Court shall decide in favor of the plaintiffs’ right to recover their damages as aforesaid then appraisers shall be a])pointed by the judge of said Cir- cuit Court to appraise the damages under and in pursuance of the 9th section of the Act of 2nd starch, 1837, and party reserving the right to make objections to the report of said appraisers before tbe Circuit Court and to api^eal from the 1101 decision or order of the Circuit Court upon such appraisal as provided for in said act. Collins & Wilson, Plff's. Attys. ' T. N. Butterfield, Atty. for Defts/^ Certificate of C. Mamer, Clerk of Supreme Court attached to above. Cyrus Copelantz, called on behalf of defendant, testified : Direct Exa min a lion. 3678 My name is Cyrus Copelantz. I live in Joliet. Have lived there since 1866; from ’54 to ’66 I lived five miles southwest from Joliet on the east side of the river. Came to Will County in 1854 wdien ten years old. Lived on farm two and a half or three miles from Desplaines River. In 1866 went into butchering business in Joliet. Was in the livery business 3679 in 1880-1884. In the boot and. shoe business from 1880 to 1884. ' Moved to Kansas City in 1884, back in 1891. Lived in Joliet since. From 1854 to 1871, I was along and across 3680 the Deseplaines River at various times, often. Possibly every V;eek or two week's from ’54 to ’66 but from ’66 to ’80 and since, except when in Missouri, have been along the river almost every week. Am acquainted with it from Channa- hon, that is ten miles below Joliet, up to Romeo, above Joliet. Have seen the river below Channahon, but not very fre- 3681 quently. In the years prior to 1871 the condition of the river would depend on the rainfall. In the spring there would be water flowing all the while up until along the last of May, and as the summer season came on, the water would diminish in quantity until in places there would not be any to speak of. Other low places, there would be water the year around in holes. From the last of May to the first of November there would be water in ]Jaces and in places it would not be dry, but there would be no water to speak of. There would be no running water seep- 3682 ing along in places. The bottom of the river varies and is not level. There is a space at Treat’s Island from that on 1102 Copelantz, — Direct Exam, — Continued. north up to the lower end of what is called Lake Joliet, there is riffles there that would not have much water there, and then after we got to the north end of Lake Joliet, up near Brandon’s bridge, up to what has been called Adam’s Dam, it is riffles, and there is no water to speak of at all. You can walk across any time. I am acquainted with the riffles; they extended from Adam’s Dam south down towards Lake Joliet, about a mile; in those riffles were boulders which varied in size, some three feet through, some two feet, and so on. They were numerous. Also down at the lower riffles at Treat’s Island. On the riffles 3683 from Adam’s Dam to the head of Treat’s Island, in the years before ’71, there would not He water to speak of at times there. The average condition along that riffle in a dry season or an ordinary season there was no time that the water was so extensive but what you could walk right across it with- out getting your feet wet, on the stones. Some seasons it was that way during practically the entire summer season. In the ordinary season, that is, an ordinary rainfall, the w^ater would vary^ when the rains would come; there was no time but what you could get across there without any trouble. There was enough water along that riffle to float a skiff in the spring of the 3684 year, after the freshets, but not that I know of during the remainder of the year. I could not tell you just exactly how many boulders were there, but I know they were very nu- merous. A fellow would be in danger, if the water was high enough for him to go down with a skiff, in getting by them. I know some fellows tried if. There was a friend of mine and his boy tried it and he ran into one and upset his boat. I was at his funeral. There is a riffle down near Treat’s Island, that 3685 is at the south end of Lake Joliet. They were not so rapid, the fall is na.t so great as they are at the north end. I should judge they were from a half a mile to three quarters of a mile in length'i; say half a mile. I did not see those as often prior to 1871 as I did at the north end. I have been there when there was no water to speak of at all, and walked right across just above there, and again when there was a little 3686 more water; it varied. The quantity of water would be about the same as it would be at the north end. I never saw enough water along those rapids at any time after the spring 1103 freshets when it would be possible to float a skiff. There were boulders along there so numerous a person could not go down with safety when the water is high enough to float a boat without being in danger. They are all over the channel. I never saw a boat there after the spring freshet was over. There is one small riffle still down quite a ways but I am not veiy^ familiar with it. I never was there but once and the water was very low at 3687 that time. That rapids is along near Smithes bridge. There were numerous boulders there, not so many as at Treat’s Island. Prior to 1871, I have been down to the mouth of the river. I don’t remember the conditions there. Before 1871, I have crossed the river at a ford at Brandon’s, before the bridge was there; also at Channahon. I have been in a rowboat on Lake Joliet. We used our boat to go across to the swamp on the west side to hunt for ducks. There were several row- boats there used for the same purpose. Never knew of any boats being used on Lake Joliet for any other purpose. I never knew of boats either going, up or down the Desplaines between its mouth and Adams’ Dam, prior to 1871. They cannot go up, there is no use talking about it. It is impossible for a man to row a boat 3689 up that river at any time of the year; that was so before 1871. When there was water the current was too swift and there were too many boulders in the river, and when there is not water, they cannot row boats. Never knew but the one boat I spoke of a while ago going down stream from Adam’s Dam to the mouth of the river; that was the one the fellow got drowned in. I don’t know that the boat was capsized; know 3690 that they got drowned. They started in a boat and we found the boat and one of the boys very close by. That is the only time I recall anybody trying to take a boat down. I never heard of any commercial navigation being carried on on the Desplaines Eiver, either before or after 1871. I have seen the river frequently since ’71, also since 1900, when the Sani- tary District commenced to discharge water into it. You cannot row a boat on the river from Jefferson street — from the upper dam. The current is too swift. I have heard of one or two 3691 men that went down in boats but they never came back. Since 1900, I never knew of anybody trying to take a boat up the river above Lake Joliet. I never knew of anyone trying 1104 to take a boat up from the mouth of the river as far as Lake Joliet, or any point below Lake Joliet. Copelaniz Cross-Examincffwn. 3693 When I was a boy living on the farm I saw the river oc- casionally. Generally went down there on Sundays in- stead of going to Sunday School. After we got our fall work done and our spring work done, and wanted to go hunting we would take a day off. When we lived in Joliet, I would see the river oftener in the city than any other place* but in buying cattle and driving we were up and down across the river. When I was in the boot and shoe business, I saw it less than any other time. I did not see it during the seven years I was in Kansas City. Since 1891 until the present time, have not paid much heed or attention to the river except as it appeared in Joliet. 3695 I was not identified with river business of any kind. The rapids near Joliet, I should judge, I am simply guessing, was about a mile long. I have crossed the river on the rapids. I never went up and down the length of the raoids in the river. There was a ford over the rapids where I have crossed a good many times. Not every year for the last thirty years out- 3696 side of the time I was in Kansas City. I crossed with a team. Sometimes there would not be any water to speak of; other times if there was rain for a time or a day or 3697 two ahead there would be twelve or fourteen inches of water. I don’t remember that I ever crossed it when it came up to the wagon bed. I probably have crossed it when it was over the hubs of the wagon wheels. If it was underneath the hubs or did not cover the hubs, I would not consider there was much water there. Don’t know how many boulders there were in that rapids, never crossed them in a boat. Below that, I should judge it is close to five miles, there is another rap- 3698 ids. It commences at the north end of Treat’s Island, I should judge the}" were half a mile long. T never passed over those ra])ids in a boat. I have crossed the river at those rai)ids with a team. I went ov-er one l)ranch of the river to Treat’s Island and then crossed the other branch of the river. That was quite a while ago, when I was living on the farm. I 1105 have not crossed over the ford there since 1866. Don’t remem- ber just how deep it was then. There is rapids on each end of Lake Joliet. I never passed over the rapids at the lower 3701 end of Lake Joliet in a boaL nor through them. My ob- servation of the boulders was had either from the bank or while crossing the stream. I would not say how many boulders there are. I have not noticed them since 1866. Since the drain- age water is in you can see where they are, but you could not see the boulder proper itself. The water covers them. You 3702 see a disturbance of the water where they are. It is not literally true that I saw boulders two or three years ago, nor last fall, nor for the last eight years. The truth is I have not forded the river there since 1866. Have not observed 3705 the boulders except when I forded the river. They have built a bridge below there. Since the water is turned in, I did not go across that ford at all, because I could not. They built a bridge below and of course we do not come in contact with the boulders. They built the bridge in 1892. I have crossed the ford after 1866. Between 1854 and 1866 I crossed it oftener than I did since. I will not say positively whether I crossed 3707 the ford since 1866 or not. I am not clear about it. I might and I might not. I cannot call it to mind if I did cross the ford since 1866. I have not observed those bould- 3708 ers since 1866. Don’t assume to know how many boulders they have there, nor their size. There is another rapids down the river before you get to the mouth but 1 don’t have much recollection of that. I have been there once but I would not describe them. You could tell there was boulders in the river along the rapids by the action of the water running around them. I don’t know how much water there is over them. I think the rapids extend the whole length of Treat’s Island. I never measured so I don’t know how long the island is. 1106 Isaac W. Richaeds, 3714 a witness eallecl by defendant, testified as follows: Direct Examination. My name is Isaac AY. Richards. I am 42 years old and live at Joliet. Came to this country in 1866, was 22 j-ears old then. Live just outside the city limits, southeast. Have lived in and close to Joliet since 1866. Business is farming principally. Farm is six miles southeast of city, about four miles from Desplaines River. Lived on that farm eight years. After that, I lived in Lockport for three years; after that was living southwest of the city. Live in city now. I am familiar with the Desplaines River, commenc- ing with Jackson street and down as far as Lake Joliet. During five years after 1866, I saw the river probably three times a week. When I would be in Joliet, I would have to cross the river at Jefferson or Cass street. I^sed to go down to Malcolm’s Mill where Adam’s Dam was. There was a sawmill and a giist-mill together. AVould go down there probably once a month between 1866 and 1869. M^ould observe the river. The mill would be operated a very light portion of the year. My father-m-law took some 3716 logs there to be sawed in ’68 or ’69 and we had to take those logs over there. Could not get them sawed because there was not water enough. We took them away from there on the snow. I think my father-in-law kept them waiting there eighteen months. Did not succeed in getting them sawed. We took them up to Hickory Creek, four miles, to Bevington Mill. I think they were sawed there. AVe used to take grain to the grist-mill 3718 and sometimes would be a good while in getting it. Would not take the grist there until the fall and would wait some- times two months before we got it. They were only able to oper- ate, I would say, in the fall and winter. Malcolm’s Mill is about four or five blocks below Jefferson street. From 1866 to 1871, the conditions were such as that there was very little water in the river. I have seen the river so low just below Dam Xo. 2 that 1 could cross the riffle with slippers and never get my feet wet, by stepping on stones in the dam. I could not say how long it would be continually in that condition but I might say for six months out of the year there is practically no water going over that dam. 1107 The spring freshets would occur when the snow was getting 3719 off. Sometimes would have a June freshet. ’69 was a wet year. There was water coming over then more than any other year. From the period after the spring freshet throughout the summer and fall, there would not be any water going over there worth mentioning until November or into December. There would be just what would seep through the dam, just a few inches. Never knew of a row boat being taken up or down the river be- tween Jefferson street and Lake Joliet during the summer or fall. I don’t think it was possible. I recall the rapids from Jefferson street and Brandon’s road. Below Adam’s Dam the stream had a good many 3721 boulders in it, lying promiscuously across the stream. They extended down as low as Hickory Creek. They would vary from half a bushel to three or four tons. They were there before 1871 and have remained there since. I don’t think it possible for a row boat to pass down through those boulders; they were lying in such shape that if you dodged one, you would hit another, the rap- ids there being quite fast. I saw the river below Lake Joliet prior to ’71, but not very often. I may have crossed the river at Treat’s Island and I never noticed the condition of the river. I would approximate the stretch from Adam’s Dam to north Hickory Creek half a mile. I never knew of a boat used on the river 3723 at any point for commercial purposes. Never knew of any boats of any kind being used above Lake Joliet. I used them on Lake Joliet for fishing purposes. There were other boats there used for same purpose, little row boats. Never knew of any boats used on Lake Joliet for commercial purposes. I remember when the deep cut was opened into Lake Michigan drawing water to the river, in 1871. We got more water after the pump started. It killed all the fish in the stream. The water was very dark. 3724 There has been no fishing in the river since then to amount to anything. I am familiar with the river since 1900 when the Sanitary District water was discharged into it. I have not known of any boats having been up or down between Malcolm’s Mill and the head of Lake Joliet since 1900. It might be possible to take a boat down the river but I think it would be impossible to take one up, the water runs too fast. I have never known of 1108 any steamboat used for commercial purposes on the river, at any 23oint, since 1900. 3725 Richards C ross-Examination. I came to Will County in the spring of 1866. I was 22 years old at that time. The first two years I lived in Will County I lived about a mile and a half southeast of Joliet, about a mile and a half, perhajDs not that far, from the Desplaines Biver. I used to see the river pretty often, twice or three times a week, I would be in Joliet a good many times and always crossed the river when I was in town, generally at the Jefferson street bridge. At times I was at the mill, and at times I was hunting and fishing up and down the river. At Joliet, there was very little water in the river most of the time, there was always some. We fished at the mouth of Hickory creek and down to Lake J oliet. We succeeded in getting fish there better than in the river. We got bullheads, bass, red horse and suckers. There were holes four or five feet deep 3727 in Hickory Creek, and possibly down about Lake Joliet there were holes in the river deeper than that. It is about a mile and a quarter or a mile and a half from Joliet to the head of Lake Joliet, I never measured it. We fished at the lake as much as any- where; we set our lines out there. 3728 There was water enough, constantly, for fish to pass up and down the river if they wanted to, up as far as Dam No. 2, — that was the Jefferson Street Dam. I have seen the water so low there just below the Jefferson Street Dam that a duck could not float up and down it. He would have to walk, and he would not get his feet wet either. I have never seen ducks walking up and down stream, but I saw water so light in that stream that I could cross it in my slippers and never get my feet wet. I would step on the little flat stones in there, stones no bigger than a dinner plate. They were about two inches thick. It might 3729 have been a hundred feet across the bed of the stream at that place. There was very little water there, a little seeping through the stone. I mean the stream was 100 feet wide. 3730 The bed of the stream was 100 feet wide, but the stream of water running down it would not be over 6 inches to a foot and a half wide between the stones, just a little water. There 1109 was no stream there that I would call a stream. I would not have to step on the stones to avoid getting my feet wet for more than half the distance across, say 50 feet, maybe not over 25, — that is a good while ago tq remember how far I stepped. I did not 3732 measure the stones. The best of my judgment is that they were not over two inches thick. Some of those stones were just at the top of the water and some were clear out of the water. There was more water in the bed of the creek, there was more trickling down through the center. There was a little water run- ning down there all the time. That was in the summer time, 3733 anywhere between June and September. Usually there would be a freshet in the spring, when the snow and ice melted, and 3735 at least as often as every other year, there would be a June freshet. After that generally we would not get any water until at late fall we might get a freshet in November, or the first of December, just before the closing up for the winter. 3737 The grist-mill was there when I came to Joliet in 1866. It was there from 1866 to 1870, but I do not know when it was taken down. I took grists of -wheat there to be ground, generally, buckwheat. I have waited for it to be ground for six weeks or two months. iV fellow named Malcomb run and operated the 3738 mill. My grist would consist of from 50 to 100 bushels, that was my entire crop of buckwheat. I usually had it milled at one time, and shipped it to Joliet and sold it. There were other grists in the mill while I was waiting for mine to be ground, evi- dently, — I suppose my grist was waiting its turn. I took 3740 it for granted that the mill did not run. I did not know how long it would take to grind the 100 bushels. I had buckwheat ground there in 1868 and ’9. 3741 I am living in Joliet now. I have been engaged in the wire business, and in selling western lapds for some time. Re-direct Examination, 3742 In regard to this grist which I had to wait to get ground in 1868 and ’9, I could not say whether the mill was running when I took my grist there to get ground, I do not think that it was. When I had to wait so long to get my flour ground, I made inquiries why it was not ground sooner. 1110 Q. And wliat did you learn? A. Tliat they had not water enough. (Objected to as hearsay; overruled; exception.) James G. Elwood, a witness for the defendant, testified as follows: Direct Examination. 3743 My name is James G. Elwood. I was born in Lockport in 1839, and my family moved to Joliet in 1843, where I hawq made my home ever since, except when I was in the army and abroad and in school. My father came West in the engineering corps on the canal. That is what brought him to Lockport. I have been familiar with the Desplaines Elver more or less all 3744 my life. I have been in the real estate bii^siness since 1861. I have been interested in waterway questions and drainage questions out in that vicinity, and have been a representative for the City of Joliet, on the Illinois Valley Committee, in opposition to the Chicago Drainage Plan. I was interested in having the deep waterway put through down there. 3745 I waded across the Desplaines Eiver in Joliet many a time as a boy, and fished in it a great deal, and have traveled up and down it. The river has at times been so dry that no water was passing through it. My first recollection of wading in the river was before the canal was opened in 1848, and after the canal was opened there has been many years when there was not suf- ficient water passing down the river to supply the Channahon level. I have seen the sluice gates at Jefferson street bridge, or Dam. No. 2 I think it is called, wide open and the lock gates at the guard lock that were formerly there, opened wide. Not the sluice gates in the lock gates, but the gates themselves with every drop of water that was coming down the Desplaines Eiver passing into that Chanahon level, and the canal; and I have frequently crossed the river on the old stone Dam No. 2 on the crest of it, with the water three or four or perhaps five feet away from the crest. AYe waded between that dam and the Adams Dam 3746 many a time with no water flowing down the stream, so far as I can recall, whatever, except some possible seepage through the Stone Dam. That condition existed, in frequent years. 1111 but I would not be able to say how long it existed each season. The river has sometimes been so full of water as to make it serious and uncomfortable for us in Joliet. I recollect in 1866 it flooded a section of the country I am interested in. That did not last more than four or five days. Prior to 1871, we called it a dry stream during the summer season. I think so far as I am able to 3747 recall almost every year there were times when there was no water passing down the river. There may have been years that it did so, but my impression is that there never was a year until the deep cut was made in the canal but what it was dry — that is, no flow of water. Before 1871, I had been down the river several times in a skiff, when the wmter was at ample stage. AVe would put the boat in just below the Adams Dam. The water then was just high enough so that we could get over the boulders, and those we could not get over we would try to dodge. I donT think at any time that I have been fishing down there but what I could wade across the river without my clothes off without any serious trouble. Not much higher than that (indicating his stom- ach) except in cases of extreme flood. I went down to the mouth of the Kankakee in my skitf, to the junction of the Kankakee and Illinois Eivers. I had better success below Lake Joliet than I had from Adam’s Dam down to the lake. AVe upset once, on one of those boulders near the mouth of Hickory Creek, but we were able to dodge the boulders around Treat’s Island. Aly fishing experiences and vacations were usually taken along the latter part of April and through the month of Alay. There was a rem- nant of a dam in the west channel below Treat’s Island, and there was a number of boulders in both channels. I do not recall any rapids at the point called Smith’s bridge. In going down the river, I never went beyond the Kankakee feeder. AA^e made a port- 3749 age there over into the canal, and came back by the canal into the lock and back home. It was easier as a rule to make the portage there, we were told. I never took a boat up stream ; I have no desire to go up against the current or the boulders. It would have been possible with sufficiently strong pulling oars to have taken a skiff up the stream at any season of the year before 1871, from the aqueduct up to say the Jefferson street bridge. The water was amply deep. I never knew of anybody doing it. The 1112 Elivood, — Direct Exam. — Continued. only upstream boating I ever knew of was on Lake Joliet, where there was no current perceptible, ordinarily. I have never known of any boats, skiffs, or other boats used for commercial pur- 3750 poses on the river, only for pleasure. I would not venture to send any merchandise on the river by any kind of boat adapted to commercial purposes. Shortly after the deep cut was made, the water became so black and stagnant and foul that no fish, snakes, or turtles lived in the river at all, and that was the condition until the Drainage District opened their supply, except when there was a very heavy freshet. I have not known of any boats being used on the river between Joliet and Ottawa for commercial purposes since 1900. I would not want to risk the enterprise. I have not seen skiffs on the river since the -water was turned in in 1900 except down at Lake Joliet a dugout or scow boat, in passing over the bridge. They were used for hunting or fishing, — I have used them myself. Cross-Examination. 3752 At the upper dam, or Dam No. 1, the water, whenever there was enough of it, ran over the dam. When there was not enough it was let through the lock gate or the sluice gate on the east side. Dam No. 2, the Jefferson Street Dam, — there was a basin between the two dams, extending about five-eighths of a mile — and the Channahon level was let out from this basin, at the ordinary full stage of water in the Channahon level. In 3753 speaking of the Channahon level, I mean the level of the canal. There was a guard lock there for the purpose of pre- venting overflow of water, and for providing more water than could be passed through the sluice gates, which were also feeders. The sluice gate and guard lock were feeders to that portion of the canal which extended about eleven miles between Joliet and Chan- nahon, and called the Channahon level. My opinion is that in low water, every drop of water that could be obtained from the Desj^laines Diver was turned into the canal and as I said in my direct testimony, the lock gates themselves were swung wide open and fastened opened so as to let all the water run through the width of the lock as well as the other gates. 1113 3754 The DuPage Kiver crossed the canal at Channahon, be- tween two locks, and the level following down the river from Channahon is fed by the water between those two locks, part of which comes down through the DuPage River when there is water flowing. The excess that didn’t follow down onto the next level below passed over the dam and went down into the Desplaines River below Channahon. The DuPage River comes in from the north, and crosses the basin between the two locks there. Its water is poured, in the first instance, right into the body of the canal, and then when the canal had a sufficient amount of water in it the balance of it passed over the side and into the valley or bed of the Desplaines River, so that from Chan- nahon at the crossing of the canal in the DuPage River at Chan- nahon, whatever volume of water there Ts either in the river, or in the river and canal together, which is not required for 3755 the canal beyond that, is put back in the Desplaines, that is, the excess over and above what is needed for that next level comes back into the canal. The canal is 90 feet across at the surface, and slopes in somewhat at the bottom, depending on whether it is a stone wall or dirt. I think about 60 feet is right, including the Berme Bank and Towpath. The average depth is about five and a half feet, and as a rule there is plenty of water. 3756 The Deep Cut was made in 1871, but the pumps were not started at South Chicago until about 1883. It was the sew- erage from the city that killed the fish. I have waded across the river up the center of it almost all the way from opposite the penitentiary clear up to Lemont, that is, above where the water was turned into the canal .and prior to 1871. The places I picked out were the shallowest, I do not know how deep it was in the deeper places. The river was virtually dry; all that section is a flat, limestone bottom, and I cannot tell you how deep the holes were,, but I did not get over knee deep in any of my wad- ing, not over my rubber boots. 3757 Above where the Desplaines River discharges itself into the canal, the water in the canal, the upper basin, was from 12 to 14 feet deep before the sewage was turned in, and the deposit made there. Above the basin, on the next level 1114 Elivood, — Cross-Exam.— Continued. 3758 above, between the twin locks, I think the water was five and a half feet deep all the way in the canal. I never went with a boat below the old feeder, the Kankakee feeder, which is about three-eighths of a mile from the mouth of the river. Then I transferred, and made a portage going back into the canal. We found no great difficulty in getting the boat down that far; we upset once or twice, but that was part of the fun. The water was a little over knee deep, so there was no real danger except our provisions got wet and our powder 3759 would .not stay dry. Just below Treat’s Island, the river at ordinary stage of water was from 70 to 90 feet wide. The channels on either side of Treat’s Island were neither of them in my judgment 75 feet wide, although if a survey were made showing them to be 100 feet wide, I would yield to the engineer who had measured it. I am only giving my eye in measurement, and from wading across, just' as it impressed me. I am speak- ing about the width when I used to go fishing there. R e-di rect Exa mi na tion . 3760 I have been wading up the river above the upper basin, above where the river was discharged into the canal. I have been up there when there was no water moving at all, just little pools here and there. The bottom of the river is almost an en- tire flat limestone rock, very level, and there are places — 1 3761 suppose or know there are holes there, but how deep they are, I do not know. The length and breadth of these holes depended on how dry the river was. There have been times when you could wade across dry-shod from one bank to the other. The general condition when I have been up there, with but one ex- ception was that there was no water running down. AVhat time of year those visits were made, I do not know. I began wading across the Desplaines River in Joliet, before the canal was com- pleted, I think about 1850 is about the time of my first recollec- tion of paddling around in the river itself. It was before the bed of it was changed l)y the Drainage District. Above Lock- port and before the canal was open, there was a certain time when the river was in the condition I have described, and other times, when there was water in there, it was a river. 1115 3764 There was then offered in evidence on behalf of the de- fendant portions of the report upon the survey of the Illi- nois Kiver signed by James H. Wilson, Lieutenant Colonel, 35th Infantry, Brevet Major General U. S. A. and William Gooding, U. S. Civil Engineer and Brevet Major General A. A. Humphreys, Headquarters Corps of Engineers, Washington, D. C. The report is dated ^‘United States Engineering Office, Davenport, Iowa, De- cember 17, 1867.” It is headed ^Gleport upon the Survey of the Illinois Kiver,” and begins at page 438 of the volume entitled Messages and Documents, War Department,” and the title page reads, House of Representatives, 40th Congress, 3rd Session. Ex. Doc. 1, pt. 2. Message of the President of the United States and Accompanying Documents” — A part of the message of the Presi> dent, and one of the accompanying documents. (Objection; overruled; exception.) The portion of said report referred to is as follows : 3765 ‘^General: Having been designated by direction of the secretary of war, through engineer orders dated Washington, May 8, 1867, as a board Go conduct surveys and examinations, and to prepare plans and estimates for the system of nav- igation by way of the Illinois River, between the Mississippi and Lake Michigan, adapted to military, naval and commer- cial purposes, in accordance with the act of March 2, 1867,’ we have the honor to submit the following report: In carrying out the instruction of the engineer department, we have steadily kept in view the following considerations : 1. The selection of the best route for the purposes pro- posed. 2. The capacity which should be given to the improvement so as to adapt it more fully to the requirements indicated in the orders of the War Department. 3. The accomplishment of the object with the least possible cost consistent with the magnitude and permanency of the im- provement, and in such order as to secure the greatest advan- tage to the commerce and navigation of the country. “W detailed report of the results of the survey of the Illi- nois River during the latter part of 1866, under the direction of Brevet Major General J. H. Wilson, was made on the 17tli of February, 1867, but as his operations were confined to that part of the river below LaSalle, it was thought necessary to continue the surveys to Lake Michigan by all the possible routes, before absolutely fixing the details of the plan of im- provement. Accordingly, at as early a date as the season 1116 Wilson Rep., — Eng. Rep. 1867. — Continued. would permit, we organized, under the general authority heretofore cited, three surveying parties under the immediate supervision of Civil Engineer Assistant James Worrall, for the purpose of making a thorough and exhaustive examination of the entire region lying between the southern and western end of Lake Michigan and LaSalle on the Illinois Elver, and also ' for the purpose of conducting a low water survey of the river from LaSalle to its mouth. To the first of these parties, under Civil Engineer Assistant George Butler Griffin, and after- wards under Civil Engineer Assistant H. Alppers, was assign- ed the duty of surveying the line of the canal from Chicago to LaSalle, the Desplaines and the Illinois Eivers, and all the alternate lines which had at any time been spoken of, in- cluding that of Mud Lake.” 3767 Also, from page 440 of said report: General consideration of the proposed improvement. ‘‘No fact can he better established than that the system of navigation between the Mississippi and Lake Michigan, by way of the Illinois Elver, should be adapted to the steam- boats and barges employed in the navigation of the Mississipp? and its principal tributaries, and not to ocean and lake vessels, except such as are required for the defense of our lake com- merce and cities. In other words, the produce of the West, on its way to eastern markets, must be transferred to a dif- ferent class of vessels as soon as it reaches the lakes; and hence in determining the dimensions of the canal; it will be amply sufficient for all practicable purposes to arrange it for the navigation of the largest class of river steamboats. It will be remembered that the western steamboats are built with overhanging guards, so that a boat 75 feet wide over all will not usually exceed 45 feet in the hull.” * * * “It is true that it has long been generally understood that the only practicable route for such improvement from Lake Michigan to the Illinois Eiver would be to follow the course of the present Illinois and Michigan Canal from Chicago untiT a point was reached v/here it would be expedient to improve and occupy the river, rather than enlarge the canal to the requisite dimensions. “This canal, from a point eight miles southwest of Chicago, follows the valley of the Desplaines, a tributary of the Illinois, until it forms a junction with the Kankakee Eiver, some 50 miles southwest of Chicago, below which the river is known upon the map as the Illinois. The latter name would have been more appropriate for the Kankakee above that point,^ as it is the main river, and Desplaines, in low water, contributes a comparatively insignificant quantity to its volume. “The Kankakee supplies water sufficient to make a good 1117 ‘‘slack- water navigation; the Desplaines of itself does not, and alttioiigli the direction of the former was such that it was not probable that a favorable connection with Lake Michigan could be made through its channel, yet it was deemed advisable to determine that fact beyond cavil.” 3768 Also on page 442: “The Desplaines River rises in the State of Wisconsin and runs nearly due south, parallel with the lake shore, and gen- erally not more than eight or ten miles from it, until it reaches a point about thirteen miles in a southwest direction from the mouth of the Chicago River. Here is a slight depression, a mile or more in width, extending across from the Desplaines to the south branch of the Chicago River, through which a part of the waters of the former river — in time of floods flow into the lake. In this depression is what was known once as Portage Lake (so designated on the old maps of the coun- try), but now better known as Mud Lake, a succession of shal- low ponds on the same level connected with each other and with the Desplaines River and extending about six miles tov/ards Chicago River. This was the portage or carrying place between the waters of the lakes and the Mississippi made memorable by the early French voyageurs, and so well known to the fur traders. But Portage or Mud Lake has ceased to exist, the shallow ponds having been drained, and the impassible sw^amps rendered valuable land. “There can be no doubt that through this depression there was once an outlet from the lakes to the Mississippi, which was closed by the recession of the waters of the lakes. Even now, at the present stage of Lake Michigan its surface is only between 8 and 9 feet below this summit. The Desplaines River, from the depression described, changes its course and runs in nearly a southwestern direction until it forms a junc- tion with the Kankakee. The river itself, except in floods, is very shallow, being often reduced in dry seasons to a mere brook, discharging less than one thousand cubic feet of water per minute. But the valley averages a mile wide and is ter- minated on both sides by well marked terraces which become higher and higher as they approach the Illinois. Evidence at every step presents itself that the water, when this was the great outlet of the lakes, extended from bluff to bluff.” 3770 Also, from page 444, as follows : “For half the distance between Lockport and Joliet, no ad- vantage can be gained by any deviation from the present line, but some expense may be saved by a different adjustment of lockage on the enlarged canal. “Below this point three different lines were surveyed to 1118 Wilson Rep., — Eng. Rep. 1867. — Continued. head of Lake Joliet, an expansion of the Desplaines Liver, two miles below the City of Joliet. ‘‘The first of these lines follows the present canal through Joliet, and the pools formed by the two dams across the Des- plaines now in use would be occupied by the proposed im- ])rovement. These dams are built of stone upon a rock foun- dation, and, having stood more than twenty years without in- jury, may be regarded as sufficiently permanent. It will re- quire considerable rock excavation under water to form a chan- nel of sufficient width for the proposed improvement, and there will be considerable difficulty in obtaining the necessary room at and near the two dams without injury to the improved property, or that which is regarded as very valuable. A short distance below the lower dam for the proposed improvement would leave the present canal and be made as direct to the head of Lake Joliet as practicable.” There was also read in evidence, from the document “Annual Ee- port of the Chief of Engineers, IT. S. Army, part III, 1884,” the title page being: “48 Congress, 2nd Session. House of Eepre- sentatives. Ex. Doc. 1, pt. 2, Vol. II. Annual report of the Chief of Engineers, United States Army, to the Secretary of War, for the year 1884. In four parts. Part III. Washington: Govern- ment Printing House, 1884,” and therein from page 1958, which is headed: “Survey of Illinois and Desplaines Eivers, between La Salle and Joliet, Illinois,” signed by W. H. H. Benyaurd, Major of Engineers, as follows: “LMited States Engineer Office, Chicago, March 5, 1884. General : “I have the honor to present the following report upon the survey of the Desplaines and Illinois Eivers from Joliet to La Salle, with estimates of cost of improvement, as provided for in the river and harbor act passed August 2, 1882. “The survey party, under the charge of Mr. George Y. Wis- ner, assistant engineer, was not sent into the field until the 1st of October, 1883, as it was deemed better to wait, and take ad- vantage of the very lowest stage of water that could be found, not only as a matter of economy, but as affording the advan- tage of obtaining the fullest information when the rivers were in their worst condition, upon which state it was necessary to base the proper plan of improvement. “The survey was commenced at big Dam No. 1 on the Des- plaines Eiver,*at Joliet, and continued to a point on the Illi- nois Eiver near LaSalle, where the Illinois and Michigan Canal enters the pool created by the lock and dam constructed by the State at Henry. 1U9 “The rivers have an average width of at)out (iOO feet, with hanks from 8 to 23 feet in height above low water, so that within ordinary stages the stream flows within fixed banks. The oscillation between high and low water is about 15 feet, though a height of 23 feet has been recorded, occasioned by an ice-gorge. “The fall in the low water surface between the points indi- cated above, a distance of 64.2 miles, is 100.25 feet. This fall is not, however, equally distributed over the entire distance, but occurs at various points, principally at the ripples, separating the different pools, and amounting in some cases to ten feet per mile. “It is evident, after consideration, that tlie only feasible plan to render the stream navigable is to slack water the entire distance. This can be accomplished by a construction of nine locks and dams, the cost of which depends upon whether the plan adopted shall be in conformity with that now in course of execution for the lower Illinois Eiver, or whether the locks shall be of the size recommended for the Hennepin Canal. In addition to the requisite locks and dams, the plan also contem- plates the construction of a short canal at the falls of Joliet, and one at Marseilles. The location of the various structures and the two canals, were fixed upon, so that there should be no conflict between the United States and persons owning val- uable manufacturing interests along the river, where water ])ower is used.”. Attached is the report of Mr. George Y. AVisner, assistant en- gineer, referred to in the document last read, signed in that name, addressed to Major H. H. Benyaurd, Corps of Engineers, headed : “Beport of Mr. George Y. AVisner, Assistant Engineer : Chicago, 111., February 22, 1884. 3771 Major: I have the honor to make the following report on the survey of the Desplaines and Illinois Kivers from Joliet to LaSalle, 111., and to submit estimates of cost for improvement of the rivers by locks and dams, so as to give a minimum depth of 7 feet at low- water stages.” ******* “The survey was commenced at Dam No. 1, on the Des- plaines Kiver, at Joliet, and continued to the mouth of the Illinois and Michigan Canal, on the Illinois Eiver, at LaSalle. “The fall of the low water surface from above dam No. 1, to LaSalle, a distance of 64.2 miles was found to be 100.25 feet. The greater portion of this fall, however, occurs in less than half the above distance, at the ripples separating the various pools, and which in some cases amount to 10 feet per mile. 1120 Wisner Rep., — Eng. Rep. 1884. — Continued. ^‘The river for the entire distance flows either over a rock hed or a strata of earth of only a few feet thickness, overlying the rock formation. ‘‘With one exception, at Treat’s Island, all the locks and dams may be established on rock foundations. ******* 3775 “It will also be seen from the accompanying maps that the river below the Adams Dam is shallow, with channel ob structed with numerous small islands, and if improved by raising water surface by a dam at the head of Lake Joliet, the pool thus formed would, in all probability, soon fill up with deposits from the Illinois and Michigan Canal, so that a nav- igable way could only be maintained by continual dredging. “Lake Joliet, however, is 5 miles long and 10 feet to 20 feet deep, and consequently, by commencing slack-water improve- ment at the head of this pool there will be little or no liability of the navigable channel becoming obstructed by deposits. “At the lower end of this pool Treat’s Island, 4,500 feet long, is situated, past which the low- water plane of the river has a slope of 10 feet to the mile. “At the lower end of Treat’s Island (6.3 miles below canal) Lock No. 3 is located, having a lift of 9.9 feet, and dam 350 feet in length. This lock will probably have to be built on a timber foundation. No borings were made, but the strata of sand and gravel overlying the rock formation probably does not exceed 12 feet in thickness. “Below Lock No. 3 a pool from four feet to 15 feet deep extends down to the mouth of the DuPage River (2 miles), below which is a ripple three-quarters of a mile long, having a low water slope of two feet per mile. “From this point the river is from 10 feet to 20 feet deep to within a short distance of the mouth of the Kankakee River (three miles), the junction of which with the Desplaines forms the Illinois. At the mouth of the Kankakee -the river flows over a rock bed, and for a distance of 1.7 miles has a low water slope of 4.4 feet per mile. “Lock No. 4 is located at the lower end of this ripple, having a lift of 8.8 feet, and dam 650 feet long.” Counsel foe Defendant. That is the site of the dam now un- der consideration in this case, and is the site of one of the supposed dams in this report. Counsel foe Complainant. I suppose it is understood with re- gard to each and all of these documents that what is put in are short extracts, and upon examination if we desire to supplement what is offered by other passages — 1121 The Court. Yes, and they are made a part of the defendant’s ctfer, wherever they are germain to the offer. There was also read in evidence on behalf of the defendant from ^‘Sanitary District of Chicago. A concise report on its organiza- tion, recourses, constructive work, methods and progress.” ^‘Sep- tember, 1903. Prepared by the Chief Engineer,” the preface being signed “I. E-. ” Counsel for Defendant. There cannot be any question about who the Chief Engineer was. A list of officers is published on one of the pages, and it shows that Isham Randolph is the Chief Engineer. There was read from said report, on page 12, as follows: 3778 “The Desplaines Valley is traversed by the river from which it takes its name — a stream of wide fluctuations with no constant and reliable fountain supply. During some sea- sons its whole discharge would pass through a six-inch pipe, and at others its volume reaches 800,000 cubic feet a minute. Then it rolls majestically along, flooding the whole valley. Such being the situation, control of this stream was a condition precedent to the successful prosecution of the work upon the Main Channel.” 3779 There was also offered in evidence on behalf of the defend- ant, page 8, executive Document No. 264, House of Repre- sentatives, immediately following the list of all steamboats of more than 50 tons register navigating the Mississi|)pi River, etc., as supplementing and as a part of the exhibit previously offered by the complainant of pages 6, 7 and 8 of said report, and which is as follows: “The act of Congress in question, requiring plans and esti- mates for a channel at least 14 feet deep and at least 160 feet in width, has been complied with, and estimates on this basis are also submitted. This channel will accommodate, of course, with greater facility, all large vessels that can reach its terminus at La Salle through the channel of the Mississippi River, at present about four and one-half feet in depth at low water, to be increased if practicable to 8 feet at low water below St. Louis, and to 6 feet on the Upper Mississippi and through the lower Illinois River, at present from 16 to 18 inches in depth on the unimproved section, to be ultimately seven feet deep at extreme low water, with locks 350 feet in length and 75 feet in width of lock chamber. No vessels now existing on the Mississippi River that cannot be accommodated 1122 Extract, — House Doc. 264. — Continued. by the 8 feet deep cliannel at extreme low water will be accom- modated by the 14 foot channel 160 feet wide, but every in- crease in depth up to a certain limit of a navigable waterway increases the facility with which it can be navigated by large vessels ; a channel from 14 feet in depth at extreme low water in Lake Michigan to 18 feet at high water across the Chicago Divide, can be navigated by similar large boats if still water, or with a very moderate current, with greater facility and ease than a still-water channel from 8 to 12 feet in depth. This is the best argument for such a channel, based upon the pres- ent or probable future navigation of the Mississippi River and its tributaries; it is not a public necessity. ‘^As for the practicability of such a channel under the con- dition imposed by the act that it shall occupy the bed of the Illinois and Desplaines Rivers, more will be said hereafter in this report. ‘‘Artificial water-ways connecting superior navigations, even, are generally restricted and obstructive, and limited by motives of economy to the least dimensions that will accommo- .date the vessels that will probably seek their use. For this reason, probably, no channel has been recommended, by any en- gineer under Governmental or State authority, exceeding 8 feet in depth across the Chicago Divide. “The strongest presentation of the necessity for a minimum channel 14 feet in depth from Lake Michigan to the Mississippi River, at the mouth of the Illinois River, is given by the Chief Engineer, of the Chicago Sanitary District, lately organized under the act of the Illinois legislature, approved May 29, 1889, entitled “An act to create Sanitary districts and to remove obstructions in the Desplaines and Illinois Rivers,” in an ar- ticle published in the Chicago Tribune dated January 29, 1890. It is given here because the author represents the only interest demanding a large channel, and presumably offers the most cogent arguments available for governmental action. “Criticising the statements contained in the Annual Report of the Chief of Engineers for 1889, page 2130, et seq., he says : “ (The italics are mine, not appearing in the article in ques- tion.) ” ********* 3782 “The government is now engaged upon an improvement which will secure 10 feet at all stages below Cairo and 8 feet from St. Louis to Cairo. Certainly if it secures 10 feet to Cairo, this will extend to St. Louis, as suggested by the i\Ls- sissippi River Commission. We may be sure that this mini- mum depth will sometune be obtained to St. Louis, and that u'lien it is, the ordinary boating stage will be as much in excess as now, or not less than 14 feet to St. Louis.” # * * * * * * * * 1123 '‘If these depths were maintained, no one questions that the utility of greater depth would be apparent and would be undertaken. * * * “If, however, a minimum depth of 10 feet is to he secured to St. Louis, it is certainly practicable to carry it over the same river, precisely to the mouth of the Missouri, 16 miles above, and then only 24 miles intervenes to the mouth of the Illinois. “No one will contend that this depth cannot he had over this 24 miles, if there is any wise purpose to be subserved, as there would be. “And here the gentleman leaps to Lake Michigan, seeking the mother of invention to help him over that 24 miles, and begs the entire question before he can get further with his 10-foot improvement. “If we can carry fourteen foot from Lake Michigan to the Mississippi. “If the government can improve 1,000 miles of river below St. Louis, we need not be balked by 40 miles above to the mouth of the Illinois. “If the improvement below St. Louis is made on the basis of 8 feet. “It is progressing slowly and laboriously on the basis of eight feet, then, we need 14 feet from the Illinois to Lake Mich- igan to meet that work, because the lower water stage on the Illinois is long continued. “He does not say how it is with the low water on the Upper Mississippi, subject to nearly the same climatic conditions, and we would only have a canal and slack-water navigation sub- ject to an oscillation of from four to 20 or more feet, from Chicago to LaSalle, with little variation in depth. “The significance of the ‘ifs^ and ‘ whens’ may be made ap- parent in part by stating that the first Lf’ presupposes the expenditure as originally estimated by the Mississippi Eiver Commission of not less than $33,000,000 to secure 10 feet mini-, mum depth below Cairo, which estimate has not been repeated in later reports, and might probably be modified by their ex- perience. Whether the Government will ‘secure’ 10 feet below Cairo is yet problematical. The Mississippi River Commis- sion have satisfactory reasons for reporting that they have solved the question of the possibility of obtaining that depth, but its realization is distant. The possibility of securing that depth is not so clear. No one knows how many years or centuries of time, or dollars it will require, under ap- propriations irregularly made, to obtain the depth of 10 feet, or to maintain or secure the depth after obtaining it. “No estimate has yet been made of the cost of fulfilling the requirements of the second, Lf,’ i. e., to ‘secure’ ten feet 1124 Extract, — Bouse Doc. 264. — Continued. '‘minimum depth to St. Louis; $17,000,000, approximately total expenditure, is estimated to get 8 feet from St. Louis to Cairo, The consummation of this 8-foot project is not yet in sight, though favorably progressing. What it will cost to get and ‘secure’ or even maintain by continued labor the additional two feet in that region of moving sands no one knows. "The same remarks apply to the third 'iC in the progress towards the mouth of the Illinois. No estimates have been made to jcarry 10 feet to the mouth of the Missouri, nor to the mouth of the Illinois, nor 14 feet of the Illinois to La Salle, but for 14 feet from La Salle to Lake Michigan an estimate is herewith of more than $48,000,000. "The definite estimates, then, so far submitted foot up nearly $100,000,000 and leave us, granting estimates correct and the work done and ‘secured’ at St. Louis with 8 feet minimum draught below the city, and not exceeding 5 feet minimum depth above La Salle. "It is evident, therefore, accepting the gentleman’s conclu- sions which do not necessarily follow, even from his hypothe- ses, that the necessity for the 14-foot channel is not urgent, and as far as navigation is concerned can wait, pending further consideration, without injury to public interests. All mechan- ical constructions would decay, if built now, before their full use would be available, awaiting the realization of the condi- tions expressed by the ‘ifs’ and ‘whens’ if built of the stone accessible to this line. "He concludes his argument — ” ****#*##* "No one in Chicago or in the Illinois Valley is interested in a 7-foot navigation. That is passing away after the stage- coach and plank road. "Eight feet minimum, is proposed across Chicago Divide, rising to from 10 to 12 feet across the divide, and to 20 feet in the rivers, with the oscillation of lakes and rivers. Less than 7 feet navigation exists on the Mississippi Eiver today, and upon all its branches and navigable tributaries, and upon every non-tidal river, probably on the globe, not slack- watered or canalized around obstructions, and on nearly every canal on the globe not connecting tidal or deep waters. "All commerce by means of non-tidal waters (excluding inland lakes and seas) of the world, except an insignificant percentage, is effected on boats and barges of 7 feet or less draught of water, and interest in a 7-foot navigation will cease in Chicago when the Erie canal no longer exists, and gener- ally when all rivers and canals, as well as men, are thoroughly regenerated.” There was also read in evidence from the report of the War Department, 1900, Chief of Engineers, Part V, Title page "Annual 1125 Reports of the War Department for the fiscal year ending June 30, 1900. Report of the Chief of Engineers. Part V, from the report of the Board of Engineers, signed ‘M. W. Barlow, Colonel, Cor})s of Engineers, etc., a report on the survej’^ of the Upper Illinois and Lower Desplaines, beginning on page 3857, as follows : 3787 ‘‘General: The Board of Engineers, officers, constituted by paragraph I special orders No. 14, headcjuarters Corps of Engineers, IT. S. A., March 12, 1899, to make a survey and estimate of cost for the improvement of the Upper Illinois River and Lower Desplaines River, with a view to the ex- tension of navigation from the Illinois River to Lake Mich- igan at or near Chicago, met at the LTiited States Engineer office, Chicago, Illinois, April 10 and 11, 1899.” Also from page 3859: “If the route by the Chicago River and Drainage Canal be adopted, there remains but little more than half of the work involved in the eight-foot project of 1890, for the Govern- ment now to take in hand in order to complete the improve- ment, since the estimated cost of this portion of the channel (about 28 miles) was nearly $14,000,000. By the Calumet and Sag route only about 104 miles of the Drainage Canal can be utilized. “But while the Drainage Canal covers about half of the work involved in the project by way of Chicago River, it at the same time has turned an additional flow into the Desplaines River, materially changing its low-water regimen. The re- quirements of this flow at present are 5,000 cubic feet per sec- ond, while the limit of ten thousand is probably more nearly the flow that will have to be dealt with, at least not long after the completion of the present project. As nearly as can be estimated, this flow gives a water line indicated upon the accompanying profile and the contrast is shown with the low- water conditions hitherto existing. The steep slope shown on the profile indicates that with so large a volume of dis- charge the velocity of the current would be too great for up- stream navigation in an open river. This might be overcome to a great extent by canalizing the river by high dams en- tailing great expenditures for the necessary works, as well as for the purchase of lands overflowed, the cost of which can- not even be approximated from present information. Also at the foot of the page, the last paragraph: “At the Marseilles Rapids, a canal about 7.4 miles in length is required to overcome the steep slope there encountered, and it is proposed to make the section not less than 160 feet wide at bottom, and ten feet deep in order to correspond to an eight-foot navigation in the river channel at low water. * * * 1126 Report, — Barlow Board Eng. Rep. Continued, ‘‘The Marseilles Canal, beginning at the head of the Utica reach, will have two locks, each with a lift of 15 feet at an esti- mated cost of $460,000; a gnard lock and a dam at the head, estimated at $300,000, and 7.4 miles of canal, estimated at $1,052,500. From the head of the canal the route will follow the channel of the river to a point below and near the mouth of the Kankakee. Similar conditions with respect to depth and velocity of current will be met in this stretch as in that between Utica and Marseilles, and an estimate for both ex- cavation and bank revetment is provided. From the head of this section a canal is necessary to reach the Joliet Basin, with locks to overcome a fall of 54 feet at low water in a distance of 17 miles, provision also being necessary for fluctuations of level at the upper lock. The estimates of the board are based upon overcoming this difference of elevation by five locks, but further study may result in a reduction of the num- ber. ’ ’ There was also read from the volume “Book of Eeports of the AVar Department, 1901. Chief of Engineers, Part 4,” the title page being “Annual Reports of the War Department for the Fiscal year ending June 30, 1901. Report of Chief of Engineers. Part 4’’ — and from the same the report of Major Willard and Col. Barlow and Major Townsend, to Brig. Gen. John M. AVilson, dated November 18, 1900, the opening sentence reading : 3790 “Chicago, 111., November 18, 1900. ‘ ‘ General : “The River and Harbor Act approved June 6, 1900, pro- vides : “That the Board of three engineers appointed by the Secre- tary of AYar, in pursuance of a paragraph in the river and harbor Act approved Alarch 3, 1899, to make a survey and estimates of cost of the improvement on the Upper Illinois River and the Lower Desplaines River in Illinois, with a view to the extension of navigation on from the Illinois River to Lake Michigan at or near the City of Chicago, is hereby authorized to report,^’ etc. Also from page 3061, there was read as follows: “AVhile the Upper Illinois and Desplaines Rivers are at pres- ent non-navigable, the commerce of the Illinois and Alichigan Canal, which has been constructed in the valleys of these rivers may be taken to represent the present commerce of such a route. The tonnage carried on the Illinois and Alichigan Canal since 1860, derived from the reports of the Board of Trade of Chicago, is also appended.” Also, from the same volume, there was read in evidence a re- 1127 port of the Board of Engineers, page 3,049, signed by Barlow, Wil- lard and Townsend, and addressed to John M. Wilson, Chief of Engineers, dated November 17, 1900, beginning : ^‘General: — The Board of Engineer Officers constituted * * * to make ^a survey and estimates of cost for the im- provement of the Upper Illinois River and Lower Uesplaines River, in Illinois, with a view to the extension of navigation from the Illinois River to Lake Michigan, at or near Chi- cago,’ ” as follows : Page 3050: 3791 ‘^The Board finds the most economic route for waterways of seven feet and eight feet depth to be from Utica to Mar- seilles in the bed of the river, 1L4 miles; then around the Mar- seilles Rapids by canal, 7.4 miles; thence in the bed of the river to near the mouth of Kankakee River, 21.2 miles; thence by enlarging the Illinois and Michigan Canal to the Joliet Basin, 18.3 miles; thence by canal through Joliet Basin and along the east bank of the Desplaines River, 44 miles, con- nected with the Sanitary Canal at Lockport, and thence through the Sanitary Canal and the Chicago River to Lake Michigan, thus complving with the terms of the act of March 3, 1899.” There was also read from House Document No. 263, heretofore referred to by counsel for the complainants, as follows : Page 7 (for the purpose of identifying a party hereafter to be a witness for the defendant) : ^‘For details of the methods employed and the results accom- plished in the actual work of the survey, attention is invited to the report of Assistant Engineer J. W. Woerman, which is hereto appended.” 3792 On Page 9, ‘Whicago Drainage Canal” there was read: ^‘Besides being a highway of commerce the Illinois and Mich- igan Canal has from the beginning served to carry off the sewage of Chicago. The Chicago River has always been the main receptacle of the sewage of the city, and as the volume of sewage has increased with the growth of the city additional facilities for discharging it into the canal have become neces- sary. When Ihe canal was opened in 1848 a pumping plant was established at Bridgeport where it joins the Chicago River. In 1860 the capacity of this plant was nearly doubled, being increased to about 400 cubic feet per second. Later on the summit level of the canal was cut down so as to provide a continuous gravity flow from the Chicago River and Lake Michigan. That work was completed in 1871 and the pumping 1128 Extract, — House Doc. 263. — Contimied. ‘‘plant abandoned. In 1883 a new pumping plant was brought into use, having a nominal capacity of 750 cubic feet per second, but it soon became evident that the discharge capacity of the old canal was quite inadequate to carry the volume of water required to dilute the sewage, and that a new and great- ly enlarged channel must be provided. The Chicago Drainage Canal was then constructed and was brought into use in Jan- uary, 1900. It has not yet been completed to its full capacity as designed. When fully completed, it will have a capacity of 10,000 cubic feet per second, flowing at a low velocity. Also, on page 12, under the head “Vested Rights.” “The steep slope of the Desplaines River and of the Illi- nois River above Utica is favorable to the development of water power. Rights of this nature have acquired additional importance with the recent increase in the discharge of the Drainage Canal, and will acquire still further importance with the further increase contemplated. An important water power has been developed by the State of Illinois at Joliet, and is now in use under lease by a private corporation. The Sanitary District of Chicago is engaged in the construction of works for the development of water power just above Joliet, an im- portant water power is in use also at Marseilles. 3794 Various other schemes for the development of water power have been projected. In all such cases fixed dams with their resultant back flowage are a necessity. In fixing the location and height of its dams, the board has endeavored to avoid the injury of any of these schemes. It has succeeded in doing this for all that are developed, and probably also for those that are undeveloped. It has accepted the levels of the pools at and above Joliet as fixed by the dam now in existence at the former and 'that under construction at the latter; and at Marseilles the canal around the rapids has enabled it to avoid the power dam at that place entirely. At other places econ- omj in excavation and avoidance of overflow have been the guiding considerations. The best development of water power would no doubt, in some cases, call for a different arrange- ment. Fewer dams and those of a greater height and of the fixed type might, from that point of view, be desirable.” “The plan submitted is not designed to develop water power; but there will probably be no difficulty in modifying it so as to conform to such development, if those who are to bene- fit thereby will co-operate with the government. They should pay the cost of the dams and the damages from flowage which is no more than they would be compelled to do if the Government made no improvement.” 1129 3796 Tliereuijon counsel for defendant offered and read in evi- dence the deposition of George Alexander, a witness for the defendant. (For rulings on same see Abstract of Depositions, supra, p. 506.) 3797 Daniel W. Mead, a witness for the defendant, testified as follows: Direct Examluatiou. My name is Daniel W. Mead; age 46; occupation civil engineer and at present residing in Madison, Wisconsin. I have an office in the First National Bank Building in Chicago. 3798 I graduated from the department of Civil Engineering at Cornell University in June, 1884. 1884-5 I was topographer in the U. S. Geological Survey, working in Chippewa Valley, AVis- consin. AVent up there after the flood of 1884 to study the condi- tions along the river. In 1885 I was engaged in making maps and a report to Prof. T. C. Chamberlain, who was in charge then, and is now, of the glacial division of the U. S. Geological Sur- vey. After that I was city engineer of Rbckford, Illinois, for about two years, during which time I designed the sewerage system for that city, and in 1887 was one of the organizers of what was known as the Rockford Construction Company, a contracting company that made a specialty of building municipal public works. I was engineer and manager of that company until about 1896. AAV 3799 built sewers, water works, bridge works, and other municipal works of that sort. Previous to that I had done some work in general practice as a civil engineer, and from 1896 up to the present time I have been in practice in general lines of engineering, principally on hydraulic works. Aly first experience on water power works was in 1886, when I was retained by the Rockford AAVter Power Company to study the ([uestion of fiowage above their dam. I have done work for various members of the com- pany, — the designing of a new dam and the construction of a por- tion of it across Rock River, the construction of the hydraulic power plant for the Rockford Edison Company, a plant of about 1,500 horsepower. I designed and made note of a plant for Mr. AA^ade Talcott, one of the water power owners, l)ut the plant has not 1130 Mead, — Direct Exam. — Continued. yet been constructed. I acted as engineer at Sterling for the Sterling Hydraulic Company in the study of the probable effect of the Hennepin Canal feeder on the water power at that place. 3800 I also designed and built the plant of the Sterling Hydraulic Company at that place at the request of Captain Eoche, now Major Ebche of the TJ. S. Engineers. I made a study of the prob- able back-water flowage from the Government Dam. I have design- ed and built various dams among which are the dam at Batavia of the Fox Eiver, a concrete dam at Danville on the Vermillion Kiver, and am building a small dam just at present at Muscoda, a wooden timber dam at New Albany, Ind., and am building a dam at Kilbourn, AVis., for a power plant that will cost about a million and a quarter to develop, at the present time about 12,500 horsepower, with future extensions to about 17,000 or 18,000 horsepower. I have made reports on a good many water power plants. I am just now designing a plant for the Northern Hydro-electric Com- pany of Green Bay, on the Peshtigo Eiver in northeastern Wis- consin. We are spending nearly a million dollars there and wih take the power to Green Bay, and through the Fex Eiver below, up as far as Neenah and Menasha. I have made reports on hydraulic matters for various bond dealers in Chicago on water power 3801 projects. In water supply works, I built water supply sys- tems at Eockford, and at Fort Worth, Texas, — two artesian supplies where we sunk shafts and drove tunnels connecting with wells. I have been connected with a good many cities of the states in water supply. I might mention Joliet, LaSalle, Eock Island, Springfield, Decatur, Danville, Lawrenceville, and I presume a dozen or so others in this state. In other states I might mention Fort Wayne, Terre Haute, Winchester, Ligonier, Indiana, Water- loo and Fort Dodge, Iowa, Eichland Center and Green Bay in Wis- consin, and a number of water suijplies for private individuals. I have just completed installing two six million gallon pump- 3802 ing engines for the Schlitz Brewing Company. I installed a number of deep wells and pumps for raising water with a capacity of about three and a half million a day for the Pabst Brewing Company for washing purposes. I have been connected with some levee work, although I have not made much of a spe- cialty in that line. I designed and built the levees of the Meredosia 1131 Drainage District, just below Albany, Illinois, on the Mississippi Diver. I also examined a number of drainage districts for bond dealers, who have taken bonds on the districts. Two years ago I prepared plans for the Smnas Development Company, along the Fraser Diver, in British Columbia. We expect to spend three quarters of a million there. We have a river, the Chilliwack, which flows at present through the district into Lake Sumas, and 3803 we expect to change its course for about four miles. It is a river of considerable size, having a low water flow of about a thousand second feet, and a high water flow of about sixty thousand feet. The drainage of the Chilliwack is not very different from the Desplaines, but it is fed by glaciers from the mountains, and has very high floods and continuous flow. Its storm floods would probably be three or four times that of the Desplaines. The 3804 Fraser flows over this territory of some 35,000 acres, that we expect to reclaim. The Chilliwack, flowing through the dis- trict, flows into Lake Sumas, a lake of about 12,000 acres, that we expect to drain entirely, and to do so we are obliged to divert the Chilliwack from Lake Sumas directly into the Fraser, and we carry it across from its present bed across the district between 3805 earth levees. We have a bank, a new bed there that will be about four miles in length and we are constructing a channel that will carry the low water flow across the dis- trict. The high water flow here, — the design calls for two earth embankments of about 700 feet across, and some 18 feet in height, as I recall it, to carry the flow at flood times. The fall is considerable, and to eliminate the high velocities we are building three dams across the river so as to reduce the gradient and control the velocity. In addition to that, we have dikes across the Fraser, some very large, quite large pumps, etc. I am chief engineer of the Economy Light & Power Plant, 3806 being selected for that place by the people who hold the bonds. I have acted as appraiser in a good many water- works cases, that is, for the taking over of the water works by municipalities. I have been professor of hydraulic and sanitary engineering at the University of Wisconsin since 1904. I had never taught before, and went there because of the opportunity for the con- 1132 Mead, — Direct Exam. — Continued. tinuation of my outside practice, and for research work. 3807 My interest in regard to research work has been largely from the fact that a great many of the formulae that hydraulic engineers are obliged to use are more or less ap- proximate, and in order to determine the actual value of con- stants and the actual truth of the formula, a large amount of work is necessarily based on experiments. I have built a labora- tory at Madison for the University, and have a number of men engaged in studies under my direction. That laboratory is 3808 larger than found in other universities, and experiments can be done on work of considerable size. I have written a num- ber of papers on hydraulic subjects, on hydro-geology, one paper on water supply, and water power, or water supplies and water resources of Illinois; one on hydro-geology of the Upper Missis- sippi Valley. I have published a small book on hydrology, used as a text at the University of Wisconsin. I have published the early part, about a third of a book on water power engineering, which will appear in its entirety in July. I designed the dam for the Economy Light & Power Company that was under construction at the time this injunction stopped it. (Witness is handed ‘‘Sheet 1 of plans of dam. May 20, 3814 1908.”) In a general way, the structure, as proposed, con- sists of an earthen embanlmient connecting with the canal embankment of the Illinois and Michigan Canal, reserving a space of about 175 feet to the wall of the power-house proper. The present proposed power-house runs from this point out about 285 feet. The structure is intended to include penstocks for 8 units of hydraulic turbines, there being 8 turbines to the unit, the turbines being connected tandem, that is, with a single shaft, the shaft projecting into the machinery room where there 3815 will be 8-750 kilowat generators. A penstock is a space or room in which the turbines sit; the water enters the pen- stock around the turbines from above the dam, that is from the headwaters, passes down through the turbines and out through the tail race into the river below. The turbines are wheels, and the water passes through the penstocks, or rooms where these wheels are placed. The penstocks, including these little round rings, re])resent the draught tubes, each of which have a pair of 1133 wheels. There are four draught tubes and eight wheels. These wheels are set in this concrete room below the surface of the headwater. The water flows into this room through three gate- ways, passing around the turbines down through the gates and through the wheels into the tail race, over which the wheels are located. From the tail race it passes away at the head of the tail water, the fall taking place directly through the turbines that take the energy of the moving water. The headwater is the height of the water above the dam. In speaking of the head- 3816 water, we refer to the surface of the water, it is the fall between the headwater and the tail water that gives us the opportunity to develop power from the water. The water which develops the power goes through the structure, that is, into the penstocks down through the wheels and out below. The water would then pass through the gates and over the spillway, that is, that taintor gates. Next to the proposed power-house proper are a series of gates similar in their character to the penstocks already mentioned. This is for a proposed extension of the power house and includes 24 openings, each similar to the open- ings in the penstocks. These will be closed with gates, and are not ordinarily intended to be used unless for emergency pur- poses. That is about 250, nearly 260 feet long. The next comes the taintor gates, gates that are a section of a cylinder, and they close and open as we may desire to control the headwaters above the dam. 3817 The next is the fishway, to allow fish to ascend from the tail water to the headwater; and then follows the overflow or spillway proper part of the dam which is 440 feet in width. That is concrete, with an 0. G. face to conduct the water up tangentially from the bottom, and to prevent any eroding of rock in the vicinity of the dam. ^^0. G.” means, a reverse curve, a convex curve at the top and a concave curve at the bottom, so that the water leaves the foot of the dam in the direction of the rock itself, and instead of falling directly on the rock, which would have a tendency to destroy and remove it, — it leaves parallel with the rock, and with no such effect. Beyond this spillway is a concrete abutment, against which abuts the earth embankment that carries the structure onto the 1134 Mead, — Direct Exam. — Continued. higher ground. By the term ‘‘waters above the dam,’^ I 3818 mean on the up stream side of the dam; that may or may not be going over. When the wheels are in operation there will be absolutely no water flowing over the dam, because we take all of the water under ordinary conditions. The water simply comes through the gate and through the wheels. That is, the plant is large enough to take the entire quantity of water that would go with the stream running in its ordinary capacity. If the stream should he very high, the water would go over the spill- way, ordinarily, or if you desired to reduce the head, we would open the taintor gates, and in that way control the height of the head water, and we could also open these 24 gates, if it was de- sired to do so. The capacity of those gates under high water conditions would be more than double the entire flood flow of the river, and the taintor gates themselves would pass the ordinary flood flow, and the spillway itself will pass the ordinary flood flow with a height of about 7 feet on the crest. By “ those gates, I refer to the future penstock gates. I would estimate the total possible flow at flood water as not to exceed 25,000 second 3820 feet. We could pass with a head available at high water over four times the fiood flow, or a head of seven feet, or we could reduce the height of the flood water about two and a half to possibly three and a half feet by the openings that are provided; that is, with all gates closed, the flood flow would pass over the spillway with a height on the crest of seven feet. That brings it two feet below our proposed top embankment, or the top of the towpath bank. I cannot conceive any possible 3821 condition that would arise under any extreme flood such as we have in the Upper Mississippi Valley under which the flood would pass over the top of the towpath bank. I would not say that it was utterly impossible, because floods entirely un- precedented, are among the possible conditions that I have not anticipated, and yet might occur. There is no flood that I have any record of in the whole Upper Mississippi Valley that would give rise to flood conditions that would raise the water or could raise the water above our embankment. I could conceive con- ditions that might do so, — if the head ymrks of the drainage canal should go out and let Lake ^Michigan down on it, something of that sort. Those are possible, not probable. I count that with- 1135 out question we could during’ the most extreme flood that is lia- ble to occur, that we could drop the water above the dam two and a half to three feet with the openings that have been provided in the dam, but under those conditions it would be about five feet, or from four and a half to five feet, five and a half feet 3822 below the towpath bank. I mean, at the highest flood, with- out opening up the gates, the water would be seven feet above the crest of the dam and would be two feet below the top of the embankment, or the towpath as projected. And if we lowered it three feet and a half, we would still have three feet and a half flowing over the dam, which we could, without ques^ tion, do; that is, from two and a half to three feet, by opening up various gates that we have provided and by letting the waters go through the wheel. The waters would go over the spillway that is provided. This condition, with seven feet above the dam, would be with the plant entirely shut down, or no wateT goiug through the wheels. 3823 To the left of the wheels, it is higher than the towpath itself. That is an earthen embankment, riprapped on the other side, and is about eleven feet above the crest of the dam, or a couple of feet above the towpath, as raised. I do not think it would be possible, with the apparatus we have arranged there, the appliances, to keep the pool down to its normal level under or- dinary conditions. There is always resistance in passing water two or three feet above its normal condition. Of course the 3824 plan of construction is to take the river through this open- ing where we are building this spillway. This opening is sufficient to carry that off with very little head. We could have the relation of the river above the dam the same as within two or three feet below the dam. Q. Commencing at the towpath, I want first to ask you whether in your experience, it is or is not usual — I don’t say usual, but the practice that obtains, to attach dams to banks of this character. Counsel for Complainant. To that I object. The Court. He may answer. A. I should say a very common practice. To illustrate: — I know of a great many dams along the Upper Fox Eiver that are 1136 Mead, — Direct Exam. — Continued. attaclied to the embankment of the canal leading from Green Bay to Lake Winnebago. I do not recall them in very great detail, but I know that this same class of construction is practiced all along that river. My old home is along the Oswego Eiver and the Erie Canal at Fulton, New York. There are a number of dams that are attached to the embankment of the canal from Syracuse down to Oswego. The one at Constantine, Michigan, is essen- tially the same. There is no canal in the sense of a navi- 3825 gable canal. The head race there, as I recall it, is about two thousand feet, and, as I remember, it runs from the dam, is attached from the embankment down to the power-house that is located about two thousand feet below. The water is carried to the power-plant through this canal, and on the other side is the river that is against the embankment, I think at all times, and at flood times it is very high on the embankment. The strip of land between.the canal and the river at Constantine is a very narrow strip; the embankment, as I recall it, runs right into the river on one side and the canal on the other. It is the St. Joe River, or the St. Joseph, I don’t know which. The dam there is about 250 feet wide there. An artificial bank lies between the river ‘ and the canal, it is some 22 or 23 feet above the river. This bank is on a foundation of marl, a very unsatisfactory bank on account of the seepage of water under it, and is built of sandy clay. There is no protection to the canal side whatever, but there is riprapping on the river side. I have only been in touch, with that plant perhaps eight or nine years, but the dam and the race is a very old one, — it is reputed to have been there some 50 years or more, and I have no doubt from the construction of the canal that that is the case. I was called in by the people who were putting their money into the plant, and found it in very bad condition, in danger of being destroyed -if they ever let water in, and I designed and built head gates, and was obliged to drive 30 feet sheet piling down in the marl, so that the water would not get in under the house. The l)ank had stood there a good many years, and was in good condition ; there was nothing to do exce])t to clean it u]) and take the weeds out. We did noth- ing to the_bank, with the exce])tion of the race, the bank was raised a little on account of the matter of fact that we wanted to carry a higher head. 1137 There was a district at Meredosia, on the Mississippi Eiver that the Trowbridge and Niver Company had purchased the bonds, on the understanding that the work was to he made satis- factory to myself. I found that for about a mile and a half, the levee work along the Mississippi was contemplated which must pass over the Meredosia Slough, that occuj^ies the old and now pretty well filled channel of the Mississippi Eiver, and the distance to rock in that channel is something like 300 feet. It is a slough or marsh. The Meredosia drainage district included 8,000 3829 acres of bottom land, and into it drains probably double that amount. In order to reclaim this land it was necessary to dike oft this district from the Mississippi floods, the Mississippi rising there in extreme floods as high, as I now recall it, as about 18 or 20 feet. The structure proposed across was a masonry structure with a comparatively narrow base. I considered the masonry structure dangerous, and instead, we build an earthen embankment. Of course, masonry itself is a safe proposition, but the nature of the foundation was such that there was bound to be a passage of water under this structure, and, in order to make it safe, we must make that water in the subsoil travel as far as possible, so we built an earth embankment and simply put the earth right in the slough and piled it up in the form of an embankment. The embankment across the slough itself was probably 300 feet long. It had a slope of two to one on both sides, and on top its width is about 8 feet. We did not carry a core wall or sheet piling down through, as finances would not permit. We have installed a couple of pumping plants that will pump about 50,000 gallons per minute, and at times of flood the gates which are carried through this embankment, which really would be the weak places in the embankment, are closed, and any water that falls on the inside will begin to pile up, and as the water in the Mississippi rises, it cannot run out, so we try to pump it out. During floods we have 18 to 20 feet against that embankment on the outside, while we try to keep it down to about 6 or 8 feet on the inside, but frequently it comes up to about 8 or 10 feet above its normal level. The levee extends on either side of that, the total length of the levee being about a mile and a half. This emhankment has been built about ten years, and is 1138 Mead,— Direct Exam. — Continued. made of a good deal of sand and gravel ; we selected and got as inucli clay as we could. It is about the usual material 3831 used for levees along the Mississippi. AVe selected as much clay as we could, as we always endeavor in levee work to make the outer side of the levee as impervious as possible to water, so that the river side, the clay was placed along there, or the most impervious material we could get. Of course no material is entirely impervious, but we selected the most impervious in order to bring the seepage down to the smallest amount possi- ble. It is a very common condition or situation as to mills with tail races paralleling rivers, to have a strip of land between the tail race and the river. They draw the water from the river, and turn it, return it to the river; their head race and tail race are built so as to secure the greatest amount of fall. There are a great many natural banks, and a great many artificial banks. It frequently happens that these artificial banks are of earth, and they remain, within my memory, for long periods of time. 3832 I remember particularly, the Constantine that I mentioned, also a good many embankments of the canal type along near Fulton, New York, between the canal and the river. The old towpath bank at the point where the work of the Economy Light & Power Company is being constructed, is of the local material of clay, mixed with more or less gravel, taken, I suppose, from the bed of the canal. Examination leads me to believe that the material is the same as the high bluffs on what are known as Dresden Heights. It is a very excellent quality of material, — material that withstands wave wash, and would stand with a considerable slope. It is material ver^^ simila;' to that we ordinarily select for the lining of reservoirs, or for the walls that are put in reservoirs, a material that is practically impervious. Q. Taking into account the proposed construction of this dam according to the plans which you have before you, and the pool which will thereby be created, if the work is carried out, — I will ask you whether that bank will or will not, in your opinion, in- juriously affect the towpath bank? CouxsEu FOR CoMPLAix^ANT. I object to that. 1139 The Court. He may answer. 3833 The Witness. I think it will not. I have had occasion to observe wave wash on the levees on the Mississippi River, on the shores of onr lakes, in fact, all places where we have open bodies of water, to get the effect of both the current and- the ef- fect of the wind, that w^e have to take care of, depending upon the character of the body of water contiguous. I have observed the wave effect of the sea, and Lake Michigan, and smaller lakes. At Lake Mendota, at Aladison, a lake perhaps four by six miles, we get quite a wave wash. On the smaller lakes there, that are perhaps a mile or a mile and a half wide, we have comparatively little, and on the smallest lake, Lake AVingree, the effect of the wave wash from the whnds is very small. On the levees of 3834 the Mississippi we have more or less trouble with that. I rip-rapped part of the Aleredosia very largely on that ac- count, to take care of the wave wash. AVe found, after it had been built a couple of years, that Avaves were affecting it, and threw some rubble along near the surface of the water, and there has never been any trouble there since, to my knowledge. Q. Returning to this towpath bank, assuming the construc- tion of the work in accordance with these plans, and the rising of the pool level, what, if any, danger will there be to the tow- path bank from wave wash! (Objection; overruled; exception.) The plans are — the plan shown by this sheet — (marked 3838 ‘‘Sheet 1 of plans of dam, Alay 20, 1908”) does not show any improvement or change otherwise than in the raising of the towpath. It shows nothing in the way of rip-rap or other im- provement; and, if the water was raised without rip-rapping or other change, otherwise than the one referred to, the raising of the bank, there might possibly be some effect from wave wash that would have to be repaired by the addition of riprapping. 3839 Rip-rapping consists of fragmentary rock of fair size placed on the embankment to be protected, — the slopes to be protected. A. Assuming that this bank were rip-rapped, would there be any danger from wave wash on the construction from the pool created by such "construction as you described this morning! 1140 M ead, — Direct Exam. — Continued. Counsel for Complainant. I object. The Court. He may answer. A. I think not, I don’t consider that there would be any danger whatever from wave wash. I have estimated the distance it would be necessary to rip-rap this towpath bank in order to protect, it. Q. What is the aggregate of the distance of the bank, the parts of the bank that you consider it would be necessary to riprap. Counsel for Complainant. I object to that. The Court. He may answer. . , A. Not more than a mile, or very little over a mile, perhaps from 5,200 to 5,600 feet might need rip-rapping. I have estimated tiie cost of rip-rapping that much of the bank. Q. What in your judgment would be the cost? Counsel for Complainant. I will ask that the objection be considered as to each one of these, your Honor? The Court. Yes, he may answer. 3840 A. My estimate would be from fifteen to possibly eighteen thousand dollars. I would estimate the cost of rip-rapping the whole bank where the pool would rest against it, from the site of the dam up to Channahon, from about forty to an ex- treme forty-five thousand dollars. That would be about 3841 20,000 feet. This at the- contract price of $2.50 per cubic yard, as made in the contract for this dam. (Motion by complainant to exclude the last answer, as to the contract price.) (Witness here indicates on the map, ^‘Woerman Exhibit 4,” At- las, p. 3980; Trans., p. 6634; Abst., p. 1934, the portion of the canal bank on which the pool may rest, as follows: ‘^From the point on the ma23 entitled ^Projiosed dam of the Economy Light & Power Company,’ ” following the line of canal embankment, the back water is sent up against the canal embankment and the land adjacent back very nearly to the }ioint, to the limit shown as Chan- nahon; in other words, the small dam that is located across the DiiPage Piver near the Village of Channahon.) 3842 The only |)ortion that I consider it necessary to rip-rap is those portions that would be more directly exjDosed to 1141 the current, the portions adjacent to the Desplaines itself, and such points where the river or the backwater from the dam would be close to the embankment, and the embanlanent in such places would not be protected by the growth of trees and bushes; that is to say, there is some places that are protected that would not be necessary to rip-rap, and where they are unprotected it 3843 would or might be desirable to rip-rap. The top of the tow- path bank varies in height in relation to the base or ground from which it rises, I should think at the lowest it is eight feet high, and is perhaps as high as sixteen feet in places. That is approximately. None of the work of rip-r.apping was completed at the time the injunction was ol)tained in this case. Q. Do you know whether or not after the injunction was ob- tained any of the stone that had been deposited there on the bank for riprapping purposes was removed? A. I authorized the contractor to take the stone immediately adjacent to the coffer- dams and place them on the coffer-dams to protect the coffer-dams during the winter. I know that he did that, and a great many of the stones that he originally placed against the bank were so removed. They had been removed prior to the 14th of April, 1908. I don’t think there would be any other source of injury to the towpath bank in the event that this pool should be raised 3844 against it other than wave wash. I think that the danger from vermin, musk-rats or crawfish in case the pool were raised against this bank as contemplated would be rather less than otherwise, on account of the less exposure of the bank. I do not think there would be any danger from saturation of this bank, if the pool were constructed as contemplated. We say a material is saturated when it is full of water. Saturation and stability are not inconsistent, assuming you have a material that is durable and resists water. As to this canal bank in question so far as saturation is concerned : — Those parts of the bank below the water surface on a line between the permanent waters in the canal and river would become saturated, there would be a 3845 water plane established approximately on a line between those two, just as there is in any material that is below a water surface. The flow through clay and gravel is exceedingly 1142 Mead, — Direct Exam. — Continued. slow, probably not more than a foot per year, while through gravel it is very rapid, sometimes going as fast as 17 feet in a day. The material of this bank, is similar to that used for pud- dle, and we use it on account of its being very dense, what is called impervious, although there is no material that is strictly impervious, but it is used for puddle walls and for lining reser- voirs, because it keeps the water from flowing out rapidly. 3846 Puddle walls are sometimes placed in embankments, usually consisting of clay base, mixed with sand and gravel, in the better classes of puddle sometimes worked through a pug mill or brick mill. I never knew of a puddle wall being built in a bank of the material of which this bank is composed. In a general way I know the conditions that existed at the Adams Dam at Joliet, before it was removed. I know the condi- tions all along the tow-path at Joliet. 3847 The slope of stability is the slope that any material will take without sloughing off, or rolling off. An embankment along a river, as it becomes saturated in the spring, or becomes wet through the rains, will slope off until it gradually reaches the stable slope, and that slope it retains, barring other influ- ences which sometimes come in, it gradually adjusts itself more or less. The tow-path bank near Dresden Heiglits varies somewhat at different places, it is practically about two to one, two hori- zontal to one vertical. In material of this character, I think it could safely be placed on one and a half to one. 3848 Q. Is there at that point at Dresden Heights any illus- tration of the fact that a slope of one and a half to one would be stable? A. The Heights themselves, they are composed of similar material to that in the levee. The towpath levee has assumed its normal slope since the canal was cut through, some 50 years or more ago. The banks rising from the canal up to the heights, the top of the bluffs, in places, I should judge, are easily one to one, and other places one and a half to one. They assumed this slope due to the seepage of water through it and a gradual adjustment to a line that would stand of itself. I should say that there would be less rather than more danger to this tow- path above the dam with the pool existing as contemplated from ice gorges or jams than there is at 'the present time, we have 1143 less current above the dam, due to the pool. The water is backed from the dam or will be up to Lake Joliet. We greatly increase the cross section, consequently slow down the current, as I 3849 spoke regarding my work on Sumas. We are putting in dams there for that purpose. The cross section of a stream is, roughly speaking, its width multiplied by its depth. If the water is raised in the stream, you double the cross section, and consequently diminish the current by one-half. The building of the dam and the raising of the pool here 3850 will throw the current out, — especially during flood condi- tions, the main current is thrown out to the spillway. It is nearly 800 feet to the spillway from the embankment, so that the current that is not running in the channel will be thrown on the other side of the river and nearly 800 feet away from the embankment. I have examined the inside of the canal bank. It has been rip- rapped on the inside to about the water surface. The rip-rapping was discontinued at that point and has left a berm that varies from two or three to five or six feet in width. That is just above the level of the water. Sometimes it is above, sometimes it is below, depending on the amount of water in the canal. This part of the work was not done by the Economy Light & Power Company, — I suppose it was the original construction, at least it has been put there by the canal authorities. Neither the Economy Light & Power Company, nor I for them, have encroached on the 3851 navigable waters of the canal, not on the canal prism, proper. We have done some rip-rapping; beginning at this bench, we have carried that slope out to the — not part of the canal ; we have simply carried it up to the height to which the towpath is to be raised. We have not rip-rapped in the naviga- ble waters, simply upon that bench and up above. It lies on the old rip-rapping and continues it on the same slope. We have prolonged the original slope of the canal, simply brought it up to the top of the towpath. I do not think there was ever 3852 any rip-rapping in the canal above the water’s edge. We filled the bench above the water in the canal which varies from perhaps dwo feet in some places where it is narrow 3853 to perhaps five or six feet in others. In some places the water had evidently eaten away a small portion, in other 1144 Mead, — Direct Exam. — Continued. words, it simply means that riprapping had stopped at that place. 3854 I know where the old aquednct pillars are. Q. Do you know what the condition of the pillars is, the stone pillars or piers! Counsel, for Complainant. I object as totally immaterial what the condition is. The Court. You may answer. A. The piers and pedestals and abutments are very much de- cayed, and some of them are tipped, not in any condition for any practical use at the present time. Q. Would it be possible without the use of an aqueduct on piers to convey water from the Kankakee feeder to the canal in case the pool were established as contemplated! (Objection; overruled; exception.) A. It would be possible by what we term an inverted siphon. I have given special study to that work of conveying water through pipes, it is part of the subject upon which I have made some 3855 publication. Assuming the low water discharge of the Kan- kakee Kiver is 30,000 cubic feet a minute, it would be possi- ble to construct an inverted siphon that would take the entire low water of the Kankakee Elver to the Illinois and Michigan Canal. The dimensions of such a pipe would depend upon the difference in heads which you would allow between the two sides. A ten foot pipe with a fill of say eight inches for 400 feet would carry away very readily 500 second feet, or 30,000 cubic feet per min- ute. Assuming that it was desired to carry through the Kanka- kee feeder sufficient water for navigation in that feeder, and that there was to he water enough to give lockage every twenty min- utes, I should judge that every twenty minutes would be about time to pass a boat through. It would be necessary to carry about a thousand feet a minute, or about 17 or 18 feet a sec- 3856 ond. A pipe three or four feet in diameter would readily accomodate it. Six feet would accommodate the water with a fall of not more than an inch in 400 feet, and give a velocity of about two feet a second, and two feet a second would mean a discharge of about 54 cubic feet a second in a six foot pipe, which 1145 would be about 3,000 cubic feet per minute, or about three times the amount that would ordinarily be needed for lockage. (Motion by complainant to strike out the last question and answer for immaterialty ; denied; exception.) 3859 Q. What will be the cost of the inverted siphon of six feet that you have last described? A. I would estimate it about $15,000. The Court. Your objection stands to this whole line, Mr. Reeves. Counsel for Defendant. How much? A. About $15,000. Q. How would that compare with the cost of carrying the aqueduct across the river? (Objection; overruled; exception.) A. I have made no careful estimate of the cost of an aqueduct, but my opinion would be from one-third to one-half the cost of the aqueduct. Counsel for Complainant. I ask to have that answer stricken out because the witness says he has made no calculation. The Court. No careful estimate. Counsel for Complainant. On that basis I move to strike it out, because we cannot — we want him to be very careful on these things. The Court. It may stand for what it is worth. 3860 Q. Could this pool exist and still admit of the passage of boats from the Kankakee River through the feeder to the Illinois and Michigan Canal. (Objection; overruled; exception.) 3861 A. It could, by means of locks. (Objection.) By a lock on either side of the river, one of which would let the boat down into the pool, and the other would raise it into the feeder. The existence I suppose would not interfere with the possibility of that pool and those locks for actual navigation. Q. It has been testified that under modern practice, dams for navigation purposes are put at the foot of rapids, and that 1146 Mead, — Direct Exam. — Continued. if this dam were constructed it would be in the way of a deep water way. What is your opinion to that, Mr. Mead? (Objected to as improper; overruled; exception.) 3862 A. Under most conditions the location of a navigation dam would be at the foot of the rapids, but the conditions ex- isting would be a point that would have to be carefully considered, and in the present condition, I do not believe a dam at the lower end of the rapids would be a proper one for power or naviga- tion purposes. The conditions at and above the junction of the Desplaines and Kankakee make it impossible to build a dam at the lower site without flooding a great deal of land. Tiiley’s ih'eek, for example, about two miles above the location of the present dam, drains a considerable territory, and in order to avoid flooding the territory with the present dam we are con- structing a cut-off behind our southern levee, and bringing Kiley’s Creek and its flood waters down and discharging them below the dam into the Kankakee. If the dam were a mile and a half be- low the present site, that would not be possible, and it would necessarily 'flood Riley’s Creek Valley and certain low lands along the Kankakee. We will flood about 1,500 acres of land if we raise the river to the proposed level. We would also have to control the flood waters of the Kankakee, which have a drain- 3863 age area of about four times the Desplaines. The floods might be controlled by an adjustable dam, or navigation dam, but not by a water-power dam, as the water-power would be destroyed in time of high water. The 1,500 acres that would be flooded include farm houses, farms, and improvements of considerable importance. Cross-Examination. 3864 I planned the dam that the defendants are building. jMucli of my work was done b}^ assistants, but I have examined the entire locality and all the details. The bottom of the river 3865 is very irregular, I should say that an average of 23 or 24 feet of the dam is to be built above the bottom of the Des- ])laines River. It would raise the water surface at low water about 16 feet. Before our coffer-dam was put in, the Desplaines was four or five feet deep at this place at the low water stage. The water was very rapid and had considerable depth. The top 1147 of the dam is about five feet below the wmter level in the Illinois and Michigan Canal, — the water in the canal is about five feet deep, so the bottom of the canal and the top of the dam would be about the same height. Under flood conditions, it would be desirable to have the top of the towpath bank raised at least two feet. Part of that work has been done, we have raised 3868 it some. The stone used for the protection of the coffer dam was some spoil or waste that I had given the con- tractor permission to dump on the canal bank. About the time the temporary injunction was issued some flood water came down and partially destroyed the coffer dam, and permission was given by the court and consented to by counsel to protect what had been there until this suit was tried. 3870 There is a dam across the Oswego liiver, which attaches to the bank of the Syracuse and Oswego branch of the Erie Canal, a branch about thirty miles long. As I remember, 3871 the tow-path in places runs through Trenton Rock, Trenton Limestone. There may be rock in the lower part of that embankment, I know there is in a good many places along there. My recollection is that the tow-path sets up three or four feet above the^water in the canal there, and that the canal prior 3872 to this present construction had some four or five feet in depth of water there. I would not undertake to go into details in regard to the slope of the bank on the river side where this dam attaches. I really would not wish to be understood as saying that the conditions at Channahon were duplicated, I simply remember it as a condition somewhat similar, — a place where the river and the canal are contiguous. Considerable rock has been used in the embankment there. 3873 Through the village of Fulton itself, the canal above the lower dam and below what is known as Oswego Falls runs along against the lower pool, the canal being on one side of the bank, and the river being on the other. The bank there is in my recollection, the ordinary depth, with a width of about 12 feet. I should think that the bank had more or less stone in it, because there is a great deal of stone available there at Fulton in the bed of the stream. The only places that I have mentioned that resemble the situation down here at the dam of the defend- 1148 M ead, — C ross-Exam. — C ontinued. ant, are at Meredosia and Constantine. There are others T might mention that I have a little better knowledge of than the ones I have just been questioned about. The Meredosia 3874 Slough is a mile and a half or two miles below Albany on the east side of the Mississippi Eiver, on the Illinois side. The eight thousand acres reclaimed did not constitute the bed of the slough. The slough ran through the center of the district, and during high water in the Mississippi, the slough flooded and overflowed valuable farm land. It is perhaps ten miles between the Mississippi and Eock Eivers here, and there was another 3875 district on the Eock Eiver side. The part that I had to do with does not extend to the Eock Eiver, although there are times when this Meredosia Slough” did extend from the Missis- sippi to the Eock Eiver, and the waters of the Mississippi would flow through, and in times of high water in the Eock, the 3876 water has been known to pass the other way. A great deal of the upper land in the district was fine farming land whenever the river did not rise high enough to over-flood it, but they were kept sour by the water coming up in the spring. The bottom lands were marsh. I was called on to protect that 8,000 acres of land from flood, and my work consisted of building a levee along the Mississippi side, and also a levee at the upper part across the channel, about half way between the Mississippi and the Eock, also placing conduits through the levee at the mouth of the slough that could be closed at high water, and during low water would let the water out by gravity; also construct- 3877 ing a pumping plant to pump the flood water from the dis- trict when the river was high. The slough proper was about three or four hundred acres that were flooded and really reserved as a reservoir to take the storm flows of the district. On the land side of the levee, the rain-water sometimes ac- 3879 cumulates faster than we can pump it out with the pumps provided, and fills the slough up six or eight feet behind the levee. The high land, all the land outside the slough, is kept from overflowing by our pumping that water out of the slough, and pre- venting the water from the Mississippi from getting in. A very small percentage comes through and under the bank. The rain- water that falls directly on this and what comes in under this surface, and under that bank, is what constitutes the water that 1149 is found there, on the land side of the levee. The levee 3880 we built is about a mile and a half long. It varies in width at the bottom, and is about eight feet wide on top. It is brought up two or three feet above the high water flow. At the Meredosia itself it is about 22 or 23 feet in height. The bank has not failed at any time so that we have had to rebuild it. We had the river on one side, and a slough on the land side, and there is low land under it, of course. There was no power-plant there to create power for commercial purposes, only a pumping 3881 plant. It was only a real estate piece of work, no canal, or towpath or anything of that kind. At Constantine, there was a bank between the head race and the river. The head race was quite good sized, was built for 2,000 feet a second. It went from the head race up at the dam down to the power-house about 2,000 feet below, and after passing through the power-plant, went into the tail race and into the river. This embankment ran lengthwise with the river, 3882 between the river on one side and the head race on the other. This embankment is quite narrow, on top I should say it is six or eight feet, with a slope on the river side of about one and a half to one. There is no rock in the embankment. The water on the river side against this bank in ordinary conditions is in low water 2 or 3 feet deep, and in high water probably 6 or 7 feet deep. On the race side it is about six or seven feet 3883 deep. The water is higher in the race than in the river. This bank is about 7 or 8 feet above the water in the race, and the bank on the race side about 12 or 14 feet wide from the race bottom. It is embankment on both sides at least part of the way, and built on a low stretch of land. The earthen embankment or wall, commencing way down by the power-house, was built up along the side of the river to a point where the river was higher than the power-plant, and some of the water diverted into the channel. This race was some 40 or 50 feet wide. The river on the other side was lower than the bottom of the race and the farther you went down towards the power-house, the lower it became, relatively, so that in low water the river only came 3886 up to this bank two or three feet. In high water, it came up six or seven feet. In low water, the bank was seven or 1150 M ecid, — Cross-Ex a m . — C on tin iiecl. eight feet above the water in the race, and in high water, the water came np to within two or three feet of the top. This race embankment was built so much higher above ordinary water so that when floods came it would not be overflowed. The current in the race was in the entire cross section ; also in the river. The current in the river was quite rapid on the bottom. The actual channel of the river was about 250 feet wide, and the depth in low water not more than 2 or 3 feet. In high water it was 3887 six or seven feet. I don’t think there is any stone in this bank, just an earthen bank. I think it has stood there more than fifty years. On the lower slope on the outside of the em- bankment it has been rip-rapped. There is no rip-rap on the in- side. I never have seen or heard of any navigation on the race. It was not constructed for any purpose of that kind. I examined this plant, and found it in bad condition. They built the plant on a marl foundation, and if they had let the water into the race in that condition, it would simply have gone under and destroyed the power-house. This bad condition was due to bad material and bad engineering. 3889 There are no plans for rip-rapping the bank, in the way of drawings, for rip-rapping the bank or towpath of the canal in the plans that I made for the dam of the defendant company on the Desplaines River. We did build a little wall or embankment constituting a part of this dam, of earth, which connects with the towpath bank of the canal. I made specifications for rip-rapping that embankment. ‘‘Exhibit F” is a specification that refers to that earth embankment. (After argument, tlie offer of said - document in connection with this examination was reserved 3891 until the recall of the witness, Lyman E. Cooley.) 3892 The dam in the Rock River, at the head of the feeder of the Hennepin Canal, was simply a dam across the river to back up the water to let it into the feeder. 3893 On direct examination, I said that in my judgment, there would be less danger on account of muskrats and other vermin in this towpath, if the water was raised on the other side of it than there is at the present time, simply because the effect would be practically in proportion to the exposed banks. I 3891 have been informed that they have occasionally had trouble 1151 with the canal bank, in having to make repairs on it where it has given away. 3895 Saturation of a bank would have its effect, dei)ending upon ’ a great many conditions. I would not say tliat a wet hank was any stronger than a dry one, and it might, if the conditions were favorable, be no weaker; there would be a tendency in any moist bank to weaken it as a general proposition. A good many materials, if wet, would be absolutely valueless as a bank; 3896 they would simply slough down. I can conceive conditions, where vertical cement walls, the bottom not being sus- tained by lateral support, resting on a clay foundation, and where the clay becomes soaked with the water, that the wall would slip and break down. If in a ditch three feet wide a cement wall a foot wide was built, a wall eight feet high, with water flowing in the ditch on the outside so as to soak the bottom of it, the wall gave way and slipped 17 inches, I would attribute it to the clay be- coming moist, saturated and slippery and no sufficient bond be- tween the concrete, so that it easily slides. 3898 Q. Then, professor, is it not true that if you take a bank made of stone, even cement, and place it upon a foundation of that kind and let it come through wet, such a wetting as a bank would receive with water nearly up to its toj) on both sides of it, is there not danger of it slipping and moving, unless it is absolutely bound? A. You refer in your question to the concrete? Q. No. I mean any kind of a bank. Clay bank or any other kind of a bank that is permitted to be saturated? A. For water to get into a plane that would allow slipping it would easily take place. 3900 There were some defects on the canal side that, I think, are probably due to wave wash. Each body of water, where it is big enough to have a wave on it, either caused by a boat pass- ing through or by the wind, in time creates what is called a wave berm. Take an earth bank 18 or 20 feet high and put a pool of water on it such as will be formed by this dam, a pool two or three hundred feet wide, and rip-rap it, in the ordinary sense of the term rip-rapping, and let it stand for half a dozen or ten years, and add to that condition boats passing through this waterway 1152 , Mead, — Cross-Exam. — Continued. that would cause a big wave to come to the side of it, if nothing is done with it, this condition will in time break it down, and tear out the rip-rapping. With no maintenance, I think it might, 3901 depending, of course, on the size of the waves, and a great many matters of that sort. Eef erring to the location of the proposed dam of the defendant; for navigation purposes I think a dam should be placed at the bottom of the rapids. Not necessarily for power purposes. The foot of the rapids is about a mile and a half below the site of the proposed dam. I think there is about two feet fall, or two and a half, between the two points. Easy navigation in the event of a deep water canal being formed there would not necessarily re- quire a dam at the foot of the rapids. It would require a dam to create slack water navigation. The dam might be located at the upper, at the foot of the rapids, or some other point farther down the stream. The location of another dam, having in mind easy and proper navigation, would be to flood back and get slack water navigation on the rapids. A dam would have to be built for slack water navigation at some point there, together with excavations in the channel that would allow boats to approach the upper locks. If this dam that is proposed to be constructed was not constructed and a deep water navigation was required, the dam at the foot of the rapids or near there would form a pool that would destroy these rapids entirely, clear back to Treat’s Island. If a dam 3903 were placed at the foot of the rapids and this dam were con- structed with a lock in each, it would require two locks, and two lockages. Re-direct Examination. Assuming that the Economy Dam is built where it is contem- jilated, it would not be necessary that the next dam should be at the foot of the rapids, for the purpose of deep navigation. I do not know how far below it would be possible to go. I have not given that subject attention. 3904 Assuming that this contemplated pool were created, and that there was navigation by big boats, that would make waves which might break down the bank in time if nothing were done to it; it would be possible to maintain it so that that result 115 ?> would not follow, and there would not be difficulty in so main- taining it. Counsel for Complainant. Mr. Scott, I have one item that slipped my eye. May I ask him about it now? Counsel for Defendant. If you prefer, you may do so. Further Cross-Examination. 3905 In estimating the cost of riprapping this canal bank, I took into account simply the side of the bank next to the river, not on top of the towpath or on the canal side. In the portion that I regarded it desirable to riprap, I took a strip 33^ feet up on the incline. That would be 3.7 cubic yards of rip-rap- ping to every yard in length. The cost of the rip-rapping I esti- mated at $2.50 per cubic yard, or $3.10 per lineal foot, which would be about $16,000 per mile. The basis of my estimate for that cost I got from the contract price named by Mr. Heyworth. 3909 That is the price he is receiving for that kind of work he has done. Be-direct Examination Continued. There is no necessity for paving or rip-rapping the bank 3910 on top. I said on cross-examination that if the water would get into a plane that would allow sloughing, that would nat- urally take place. There is no danger of any such result in this bank, as I know it. No new clay is contemplated to be put on the inside of this bank. A bank which has stood for 60 years is much more stable than a new one — it has got settled and com- pact. The bank at Constantine leads down to a mill, a hydro-electric plant, furnishing electric light and power to Constantine and Three Rivers, 16 or 18 miles away. In the Meredosia Slough there is about 16,000 acres draining into this slough. The district itself is 8,000 acres, and there is about as much more which receives the rainfall. 1154 W. H. Whislee, a witness for the defendant, testified as follows: Direct Examination. 3911 My name is W. H. Whisler; I am a steamboat man. I have traveled on the river all my life. I have had a license since 1870, and before I had a license I floated logs and lumber. My experience has all been on the Mississippi. I first commenced pulling oars, floating lumber, in 1865, from the mouth of the Chip- pewa, and went to Lyons Island. After that, we floated in dif- ferent places through to St. Louis and different points on the river till we got to using small boats, then larger boats, running without oars. Then we got to running double rafts and using 3913 the bowboats. The largest raft I have ever run was 290 feet wide, 1,422 feet long. My first license was for pilot in 1870. Three years later I got a license for master and pilot. I ran second pilot for three or four years, then I got to be master. The first boat I run on was a little side-wheeler, then a small stern-wheel, and then larger boats. I took out the steamer Dayton, 130 feet wide, 30 foot beam and about 150 feet long over all, in 1881, running her eleven years. Then they built a new boat, and I run her for the last year. She was 137 feet long with 32 foot beam. We were in the rafting business. During the last 3914 year I have been running the Steamer Weyerhauser, a jjleas- ure boat, 142 feet long and 33 foot beam. I have been familiar with navigation on the Mississippi since about 1865. The fartherest run I have been was from St. Paul or Stillwater to Memphis, on floating rafts, but most of my runs have been to St. Louis, Albany and a great deal to Keokuk and Hannibal. 3915 But for the last three or four years to Pock Island. I have been generally familiar with navigation as it is carried on in the Mississippi between the points mentioned since 1865. I have seen the Desplaines Eiver twice, from the shore. The first time was six weeks ago last Sunday — I went from Joliet to Treat’s Island. I went down again this morning, from .3916 Joliet to the mouth of the river. I went up with an auto., and stopped at different places. AVe crossed the river sev- eral times on the first trip; only once yesterday, that at the first bridge below Joliet. I am familiar with the Bock Island Bapids 1155 in the Mississippi, and have done a little warping and cordelling of boats. I understand the process. 3917 The Desplaines is very swift, swifter than any water we have on the Eock Island Eapids; very much narrower; it looks to me like there is a good many boulders or rocks on the bottom; I don’t know what they are. When you go to the rapids, I can tell you what they are, but I have not been on the 3918 water of the Desplaines. I think there are boulders in the Desplaines because wherever the big falls are there is a big break in the water. Q. From your observation or examination of the Desplaines river, I will ask you whether, in your opinion, that stream from Joliet to the Illinois Eiver is, or is not, a navigable river f (Objection; overruled; exception.) I don’t think it is navigable. I would say it is not navigable, by any means. It is too narrow, too swift. I don’t think you could take any kind of a boat safe. Q. Do you think it would be possible to carry on profitable commerce in any kind of a boat on that river between Joliet and its mouth? (Objection; overruled; exception.) I don’t think so. I don’t think it is possible. C ross-Exa mi n a ti o n. 3919 In taking logs down the Mississippi, we fioated them. When we got in still water, we had to have boats to shove us between Lake St. Croix and Lake Pippin. Most of my work was from the foot of Lake Pippin to Eock Island. I was pulling 3920 an oar, for guidance of rafts, in 1867. I have seen the Mis- sissippi when it was very difficult to navigate. I have taken different length boats up and down the (Moline) ra]uds — from 132 to 142 feet long, 32 feet wide, and from 180 to 216 tonnage. I do not know what the fall is at the Moline Eapids. But take it at Moline Chain, Duck Creek Chain, Campbell’s Chain, Sycamore Chain and Cabin Chain, is the heaviest chain. I think the Moline Chain they claim for six miles there or about two miles, it is six feet or something; I have heard that said. I do not know any- 1156 Whistler, — Cross-Exam. — Continued. thing about the navigation of the Snake Eiver; never heard 3922 of the navigation on that river and over rapids that are six- teen feet fall to the mile. If they do navigate rivers of that much fall it is a kind of navigation with which I am not familiar. I would not say that they could not do it ; I would mot want to try anything of that kind. From my experience I would think it was impossible. I do not know anything about navigating rivers 3923 that have a fall of 25 feet to the mile. I think the Desplaines is too narrow for navigation. The narrowest place on the Mississippi where I have navigated it, the channel was supposed to be 200 feet wide. That is the rapids between Rock Island and LeClair, on the different chains, where they have dredged out. The water there must be half a mile wide. The Desplaines looks pretty small to me after having had that kind of experience. 3924 I do not know of any place where they are navigating rivers not over 40 to 30 feet wide. I have never been on any of those little rivers. I have never passed through Crooked Eiver, the little stretch of lakes down to Cheboygan Eiver, near Petos- key, Michigan. It is possible to navigate a river 30 feet wide, crooked, so much so that it bears that name, by boats 75 to 100 feet long, depending on the depth of the water and swiftness of the current. If the water was 24 feet deep, I don’t know what you would take over her. You couldn’t handle a boat unless you would drop a line. We don’t handle that light draught boats. My ex- perience is on a river that draws more water than that. My ob- jection to the Desplaines is that the current is too swift and the stream too narrow — that is why I think it is not navigable. 3926 I have seen the Desplaines twice. The first time it was a wet, rainy day, and we went to Treat’s Island, I think about 12 miles. We crossed the river three or four times, got out and looked at the river at several places, and from the bridges. Re-direct Examination. 3928 The road runs along close to the river — we saw the river from the road as we went down. 3929 Q. I will ask you whether or not the obstructions which you mentioned in the river would have any effect upon its navigability? (Objection; overruled; exception.) 1157 A. It has. Q. Has the velocity of the water anything to do with the navi- gability of a narrow stream? (Objection; overruled; exception.) A. It has; in the swift water in the whirls and rapids it is 5930 impossible to handle a boat, and if the boulders are in the channel you cannot sway from side to side and get your boat safely through. For instance, in low water, with a boat drawing three feet, and there is Imt four feet of water, her rudder is 3931 close to tlie bottom and won’t take effect; she will run away from you, will go from one side of the river to the other; she will go to the rocks, and you have got to back up a hundred yards or two to get her and give her another pull, and come ahead on her again. Sometimes you will go down through a chain side- ways to a xdace where you can’t stoj) or start her again. (Motion by complainant to exclude question and answer as improper re-direct examination; overruled; exception.) John McCaffrey, a witness for the defendant, testified as follows; Direct Examination. 3933 My name is John McCaffrey. I am sixty-five years old, and have been in the steamboat business since 1865. I started in the lumber business on a small steamer in 1865, on the Mississipxii. The boat was about 75 to 80 feet long and 16 or 18 feet wide. I have been in the steamboat business since that time from St. Paul to New Orleans. We run up the Chippewa and IlenneiDin Canal, ran a boat ui3 the Illinois to thirty or forty miles above Peoria, on the Ohio from Carroll to Golconda, on the Ten- nessee from Paducah to Florence, Alabama. I have been around the Mussel Shoals on a boat; went around by canal. I have 3934 been up the Cumberland 100 or 150 miles. Governor Van Sandt and I were in partnership for fifteen years. I got my 3935 first }3apers in 1865, as a master and pilot both, from the United States. I have not followed the river for three years. When I (luit, I owned the Pen Brook, a boat 135 feet long, running between Paducah and as high on the Tennessee as Florence, Ala- bama. The last boat I built or had built was the Joe Long; I built 1158 McCaffrey, — Direct Exam. — Continued. her for the upper Eock Island Eapids. I was a rapids pilot 3936 for 12 or 13 years. From 1865 to 1905 I followed the river. I have had experience with warping and cordelling boats; it was the only way to get up the Chippewa when we first started, because' of the rapids. I have seen the Desplaines Eiver, on the 25th or 26th of April, 1908, and again yesterday. The first 3937 time we crossed all the bridges down to Treat’s Island. I took a look at the river, got off at the bridges. I went down the second time to the mouth of the Desplaines and Kankakee. I saw the coffer-dam or work that was put up or commenced. The first trip we saw the river from the road on the way down. 3938 It did not look much like a river to me — 'like a creek or slough. The water was very swift that I saw in there, and crooked, and seemed a very rough bottom from the way the water reared and pitched at different places, because of rocks or some obstructions. The water was very swift and very rough at the point where the dam is being built. It was not so rough at Treat’s Island, but it was very swift and crooked. You could not get noth- ing up that way. Q. From your observation of the Desplaines Eiver, what have yoi,i to say as to whether or not the stream between Joliet and the mouth is a navigable stream? (Objection; overruled; exception.) A. I would say that it was not. I don’t think you could get anything up there that would do any business. 3939 I began on a small boat about 75 feet long, and have navi- gated the Mary Morton, 200 feet long. The Desplaines would not be navigable for any boat that I have been familiar with on the Mississippi or its tributaries engaged in any kind of com- merce. I never saw a boat that I think could navigate the Des- plaines Eiver for purposes of navigation. Counsel for Complainant. I want it understood that I have an objection to all this. The Court. Yes, your objection stands to all these questions. The river is too swift and too crooked, and there is not 3940 enough water in it to be navigable. If there is not enough water over the obstructions, they are the worst kind. 1159 Q. Would it be possible, in your opinion, to navigate the rapids of the Desplaines River hy the method of warping or cordelling! (Objection; overruled; exception.) A. Not with a steamboat; it is too crooked, and there is not width enough in it. A boat can be cordelled on a stream the shores of which are heavily wooded, if the limbs do not stick out too far. You can lay a rope any place where it is not too swift. o941 You cannot cordell a boat if the stream is too narrow; you cannot keep it otf the bank. When the water sets in to the bank, the boat will go in there. If the water sets out, the boat will swing out, going at a slant. It would not be possible to do anything wdth any boat I have ever been familiar with in a narrow channel and swift water by way of cordelling. You have no room. You could not cordell in the Desplaines; there is no water. It is not wide enough. C ross-Exam in at ion. 8942 Most of my work has been done on the Mississippi and its tributaries. I have been down the Desplaines twice, on the request of someone who wanted me to come over here and testify, and I made an examination on that account. There is not 8943 water enough in the Desplaines, and the current is too swift for navigation. A little stream can go as fast as a big one if you give it slope enough. I do not know what the slope of the river is; I did not take soundings. In my mind’s eye, the water was swifter than anything I ever saw before. I have never been on the St. Lawrence, or the Fox, have never been on any river except 3945 what I told you. I have been on the Tennessee and the Ouachita. I was on the latter river with a boat II5 by 20, 8947 which would carry 80 or 90 tons. I call that a small boat. A flat bottom boat, with 15 feet beam, would have to he 15 to 16 feet long. I suppose that a boat 10 or 12 feet wide, to carry 10 tons, wmiild have to be 20 feet long. I never operated a boat of that size, nor saw one operated — not a steamboat. I think 8948 there are some gasoline boats, flatboats, scow built, that I have seen that would carry that much. I have never seen them navigating from point to point carrying freight for commer- cial purposes; they say there are some of them, but I have never 1160 «een them. I have never seen a boat of that kind on the Wabash or Ohio Rivers ; they may he there on the upper yiver. 3950 The shallowest water we have ever run on in the Ten- nessee River was 4^ feet. I have navigated a boat on less than that in the Mississippi, with a minimum depth of 3 feet. I have never navigated on two feet. I have done some warp- 3951 ing of boats on the Chippewa and Ouachita Rivers. The latter comes into the Mississippi about 16 miles from New Orleans. They have big boats running up there when the water is at a good stage. It is seven or eight years since I was up there. I warped a boat up there in one place. I do not know how steep the slope was; the river was pretty swift and crooked; it must have been 300 feet wide, deep in to the shore, and got shallow out in the middle. This was at a bend. We pushed the boat up to make a turn there. The slope of the Desplaines looks to me about double what we have on the rapids; I think it is about 18 inches to the mile on the rapids. I never knew of people navigat- 3954 ing on rivers that had a slope of 10 or 12 feet to the mile, or as high as 6 or 7 feet to the mile. I don’t think they could navigate a slope of 16 feet to the mile. At the Muscle Shoals of the Tennessee there is nine miles that has a slope of 80 feet; they have a canal around that. J. W. Rambo. a witness for the defendant, testified as follows : Direct Examincitiou . 3955 My name is J. W. Rambo. I am sixty-four years old, and reside at LeClair, Scott County, Iowa. My occupation is that of a pilot. I have been following the rivers for 50 years. I got my first papers in 1864. My life work has been on what is known as the Rock Island Rapids, extending from LeClair to Rock Island. I have been there for 45 years. Before that I worked as a raftsman, and went from Stillwater to St. Louis for three or four years. I am still in active work. I have owned 3956 three or four boats, operated at the rapids. My navigation has been entirely on the Mississippi, except one year I took a circus to Vicksburg. 3957 I saw the Desplaines River on the 26th of April for about seven miles from Joliet down the river, from different points 1161 along where we could reach it, and crossed the river on several bridges. Then again I made a trip down to the mouth of the river where it enters the Illinois, yesterday. We found rather a rougli- looking piece of water. From the appearance of the surface of the water there must be very rough and rugged and snarly bottom under it on account of the constant swirls and things on top of the water. Of course, we did not see any in most of the water. 3958 There were a great many trees sticking out, but we did not see any boulders; but there must be something pretty solid under those swirls. I am used to that kind of water, but I have not seen anything where I lived that compared with it at all. These trees we saw were sticking out in the river. Just where the river empties into the Illinois there seems to be a very rough place, (juite a fall. Q. State whether or not, in your opinion, and from your ob- servation of the river, the Desplaines is or is not a navigable stream? (Objection; overruled; exception.) A. I would say that no sane man \vould ever try to take any- thing up or down the Desplaines river in the shape of a steamboat. I would not go down it in a skitf. (Motion to have the answer excluded.) 3959 The Court. It may stand as the answer he wants to make to it. I have navigated the river at Eock Island about 45 years. We can navigate the Eock Island Eapids, and we could not navigate this, and nobody else, I don’t think. The normal low water stage of the Eock Island Eapids is about 34 feet — low water now; before it was improved I have seen it when there was not 20 inches in the channel, in 1864. That is the low water gauge of the Govern- ment, the lowest mark they know of. It was navigated at that low water mark; we had a little boat or two that we got over it at that time ; she was about 85 or 90 feet long and probably 18 or 20 feet beam. ‘‘The Enterprise,” they called it. Twenty inches 3960 was the best water we could find. Aside from that one year before the improvements were put in, the normal low water flow over the rapids was 30, 31 or 32 inches. The boat that we took over in 20 inches used to carry a small amount of freight. 1162 Bamho, — Direct Exam.— Continued. I have seen some cordelling. I have had plenty of it on 3961 hand. It is not possible on the Desplaines, on account of the bad shore; too many obstructions, and the water will not permit. It is a very swift water and crooked river. You can cor- ded wherever you have a shore to walk on. Cordelling is where you take a line, put it over your shoulder and pull something up behind you. Warping is where you fasten up above you and run a line down and pull up to that. In warping you have to have a little width on account of the sheering of the boat. She 3962 would run first one way and then the other unless you could hold her steady; in warping around a bend you are pulling straight toward the warp. The boat will not go around the bend and go straight toward the warp; you have to have side lines to hold her in the channel, and pull her first one way and then the other. It sometimes happens that your boat will swing off and present her side to the water; you have to have enough 3963 width to let her run a little, and then she will come back. I do not think a boat could be warped at Treat’s Island Rapids. I never tried such a job as that. I have had to warp a good many boats into the swift water of the Rock Island Rapids a hundred times. 3964 Nothing in the line of a steamboat could go up that river. I don’t know of a boat in our country that could go up that river, and I have seen them all, and handled pretty nearly all of fhem in the Mississippi for the last 40 years. I include all sizes and all kinds, and I am there for that purpose at the rapids. Cross-Examination. 3965 There is about a foot and a half fall in the rapids at Rock Island, two feet at what we call Smith’s Chain; Sycamore l)elow that has three and a half, then there is two and a half, then Hamden’s Lake, three miles long, where there is no fall at all; then Campbell, with a fall of a couple of feet, and from there to the Rock Island bridge I think the total fall is something like 21 feet. I think the distance is about 15 by channel. A 21-foot fall in about 15 miles, 1.4 feet of fall per mile. In low water 3966 there would not be so much. The greatest fall in this dis- tance is 34 feet per mile. 1163 3967 I do not know of any navigation on any river that has a fall of 6, 7 or 8 feet per mile. I have never seen anything of that kind; have never been on very many rivers; have never been on the rapids of the St. Lawrence. I have heard of the Snake. I do not know anything about the fall in that river, nor whether it is navigable or not. I do not think it possible to navigate a river with a fall of 16 feet per mile, with anything we have in the steamboat line in this country — that is, the Mississippi Eiver and its tributaries. We have as good steamboats there as anywhere. Boiled down, then, to the final analysis, I do not think it possible to navigate a river with a fall of 16 feet per mile. I never heard of navigating a river with a fall of 25 feet per mile. I have heard of the Fox Eiver, and have run boats that have been run- 3969 ning there, but they could not go up over our rapids here. I have run boats on the Eock Island Eapids for 40 years; there are a lot of people who know the channel there, but who cannot take a boat over. That is the most difficult rapids 3970 that I know anything about personally. I base my state- ment of the non-navigability of the Desplaines a good deal on my experience on the falls of the Mississippi. The smallest steamer that is operated on the falls of the Mississippi is about 75 feet in length. There are some electric launches, mostly pleas- ure boats, from 16 to 90 feet long,_that go up and down the river. I have carried lots of them up and down the rapids. There 3971 are also a good many larger steamers going up and down these rapids. I would not like to risk a boat LOO feet long on the Desplaines. The smallest steamboat that I spoke of, about 70 feet long, was about 17 feet beam, and carried 40 to 50 tons. I do not know of any boat carrying ten tons. A boat 15 feet wide, flat bottom, carrying ten tons, would have to be about as long as she was wide. I think that a boat 30 feet long by 15 wide, 3972 built on the flat bottomed plan, would carry ten tons with- out any trouble. I am not operating any boat of that kind, have never seen any of that kind, under any kind of power; have had no experience with that kind of navigation. Eamho Be-direct Examination, Q. In Yoiir opinion, could sncli gasoline boats as you have seen on the Mississippi Eiver go up the Desplaines? (Objection; overruled; exception.) A. There is nothing of that character on the upper Mississippi Kiver, not that I have seen there. Q. You were asked about a steamboat able to carry ten tons, 20 or 25 feet long. In your opinion, could such a boat go up the Desplaines Eiver! A. No. My business as pilot on the Eock Island Eapids is to replace the regular pilot on the ships, and take the boat up and down .the rapids. There are five or six of us. There was then offered in evidence on behalf of the defendant, from the Canal Commissioner’s report of Illinois for 1900, a list of the leases of the 90-foot strip of lots, on pages 17 and 18 thereof. 3974 (Objection.) 3976 Mr. Scott. I put in first, from page 15, heading of this part of the report, ‘‘StatemenI showing amount of receipts and disbursements on account of the Illinois and Michigan Canal and locks in the Illinois Elver at Henry and Copperas Creek, from December 1, 1899, to November 30, 1900, inclusive,” with sub- heads. And then I particularly refer to ‘^C,” ^‘Leases of ^90-foot strip’ ” and lots on pages 17 and 18, as follows: 1165 3978 “Leases of ‘Ninety-Foot Strip’ and Lots. Number of Date Receipt Name of Lessee. Location Amount 1899 Dec. 13 5 John Liker Joliet $ 5.00 26 7 Carrington, Hannah & Co. Chicago 1,250.00 1900 Jan. 11 33 John B. Allison Lemon t 20.00 Feb. 6 44 Ottawa Development As’n Ottawa (in part) 180.00 U 6 45 Field Electric Co. Morris 6.00 12 47 W. D. Leser Ottawa 1.00 Mar. 22 56 Repauno Chemical Co. Romeo 10.00 22 57 J. G. Bodenschatz Lemont 25.00 U 28 58 W. R. Stubs Willow Springs 25.00 April 4 59 S. J. Howe for E. N. Davis Chicago (part pay- ment) 100.00 “ 10 61 Russell & Cavanaugh Utica 75.00 24 62 Mary Sheehan Bridgeport 100.00 63 Albert T. Randall Channahon 21.00 27 70 Chicago Strawboard Co. Morris 100.00 30 71 John Schroeder iMorris 5.00 May 25 79 Peter Ring Willow Springs 15.00 June 8 87 Chicago & Alton Ry. Co. Chicago ] 00.00 July 9 toi Carrington, Hannah & Co. E. F. Pulsifer Chicago 1,250.00 <( 10 102 Utica 50.00 16 105 Illinois Steel Co. Joliet 500.00 106 Emery N. Davis Chicago (part pay- ment) 400.00 31 108 J. F. Killduf (two leases) La Salle 150.00 Aug. 7 114 George Woodruflf Copperas Creek 50.00 20 115 Ottawa Developm’t As’n. Ottawa 1,020.00 Sept. U 5 121 Houck & Brown Joliet 100.00 128 Robert Schofield Morris 3.00 ii 17 129 Chicago & Alton Ry. Co. Corwith 25.00 18 131 John Liker Joliet 5.00 Oct. 25 132 George M. Campbell Romeo 50.00 .31 141 Norton & Co, Lockport 190.00 u 142 Norton & Co. Lockport 10.00 143 H. S. Norton Lemont 300.00 Total $6,141.00” 3980 There was also offered from said book, page 41, heading, “Unsold Canal Lands, November 30, 1900.” (Objection; overruled; exception.) Also the table found on page 43 of said book, “Unsold Canal Lands, November 30, 1900.” Said passages so offered on pages 41, 42 and 43 of the Canal Commissioners’ report for 1900 are as follows : 1166 Extract, — Canal Com. Rep. 1900 . — Continued. 3983 ^‘Unsold Canal Lots^ Novembeh 30 , 1900 . Lots Chicago Being in Canal Commissioner’s subdi- vision of that part of southwest ^ section 29, Tp. 39, R. 14 east, lying south of the main canal, west of river, and known as blocks 12 and 13 of Canal Trustee’s subdivision of blocks 10, 10>^, 11, 12, 13 and southwest 34 section 29, 39, 14. Also block “A” not previously surveyed or platted, in southwest J4 section and east of Chi- Block Valuation cago river 12 1234 $ 50,000.00 50,000.00 13 12,000.00 A 1,000.00 In Canal Trustee’s new subdivision east fraction southwest fraction 54 section 21, 29, 14 35 6,000.00 Lockport. Sub Lots 2 and 3 of subdivision of lot 3 63 100.00 Sub Lot 2 of subdivision of lot 4 63 50.00 1, 2 71 10,000.00 3, 4, 5 102 3,000.00 Vacated street between blocks 102-3 600.00 1, 2, 3, 4, 5 103 3,000.00 Vacated street between 103H4 600.00 1, 2, 3, 4, 5 103 3,000.00 1, 2, 3 114 1,400.00 2 116 800.00 5, 6, 7, 8, 9, 10, 11, 12 121 3,500.00 1, 2, 3, 4, 5, 6 Strip northeast of and adjoining 122 ' 4,000.00 122 300.00 1, 2, 3, 4, 5 123 3,000.00 I, 2, 3, 4 126 400.00 129 150.00 131 25.00 134 50.00 135 100.00 8-65/100 acres west of river west V 2 sec- tion 23, T. 36, R. 10, Lockport 865.00 Lots Block Valuation Joliet South 6 lots of block 1, North Joliet.. .. $ 1,200.00 Block 2, North Joliet, 10 lots 2,000.00 Block 3, lots 4, 5, 6, 7, 8-5 lots at $200 each 1,000.00 Block 5, lot 10 Vacated street between blocks 36 and 37 1,000.00 500.00 Block 37, lots 11, 12, 13, 14, 15 3,800.00 East V 2 of lots 8, 9, 10, 12 block 1, West Joliet 740.00 Haven (On the Little Wabash River.) 27 acres, at $10.00 270.00 DuPage (Now called Channahon). 4 100.00 8, 9, (worth nothing), inundated 4 3 16 10.00 1, 2 21 40.00 52 300.00 Total $119,000.00 $ 34,940.00 Total $ 10,240.00 270.00 450.00 1167 P. 42 Kankakee. Blocks 30, 31, 32, 34, 37, 38, 39, 40 and 42 being in section 31, township 34, range 9 east, 3rd P. M. containing 16-32/100 acres, at $25.00 per acre 408.00 408.00 Morris. Lying between canal and Illinois River B 200.00 200.00 Ottawa (Original Town). 1, 2, 3, 4, 5, 6, 7, 8 20 10.00 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 21 4,000.00 L 2, 3, 4, 5, 6 22 600.00 23 600.00 24 300.00 25 500.00 26 500.00 27 400.00 28 2,850.00 $ 6,960.00 State’s Addition to Ottawa. 3, 4, 5 38 3,500.00 $ 10,460.00 LaSalle. 1, 2, 3, and part of 4 141 $ 1,400.00 1, 2, 3 142 750.00 $ 2,150.00 Lots Block Valuation Total Peru Outlots’ 7, 8, 9 and 10 in Canal Trustee’s subdivision northeast fractional section 21, 33, 1 $ 1,000.00 $ 1,000.00 City of Henry. 3,937 acres, being east part lot 26 ’ 800.00 800.00 Banner, Fulton County. 23 acres near Copperas Creek 240.00 240.00 Unsold Canal Lands November 30 , 1900 . P. 43 Description Section. Town. Range. Acres. Valua- Valua- tion per tion per acre. tract. Three small islands 15 33 4 $5.00 Part of island in north half 17 33 4 5.00 Island in 1 33 7 13.09 $1.00 13.09 Strip in 1 and 12 38 12 2.25 150.00 337.50 Total Recapitulation . $360.59 Canal Lots and Tracts. Valuation Total. Chicago 7 $119,000.00 Lockport 49 34,940.00 Joliet 43 10,390.000 Du Page 7 550.00 Kankakee .11 408.00 Morris 1 200.00 Ottawa 35 10,460.00 La Salle 7 2,150.00 Peru 4 1,000.00 Henry 3.37 acres 800.00 Banner, Fulton County 24 240.00 $180,138.00 Unsold lands 360.59 Total $180,498.59’ 1168 3987 There was also offered in evidence on behalf of the defend- ant from the Senate Journal of Illinois, for 1836 and 1837, from the documentary history of the Illinois and Michigan Canal the following : (Objection; overruled; exception.) 3988 ‘‘Monday, January 23, 1837. “Mr. Thomas, from committee on canals and canal lands, reported following facts in relation to subject matter of the bill : “Five persons were appointed a Board of Commissioners, to adopt measures requisite to effect communication by canal and locks between the navigable waters of the Illinois Eiver and Lake Michigan, and were authorized to employ an en- gineer and such other persons as might be necessary to dis- charge the duties imposed upon them. “They were also authorized to cause that part of the terri- tory of the state which may lie upon or contiguous to the probable courses and ranges of said canal, to be explored and examined for the purpose of fixing and determining the most eligible and proper route for the same; and to cause all nec- essary surveys and levels to be taken, and accurate maps filed, and books and drafts thereof to be made. “They were also required to make a report to the next session of the general assembly, or to an extra session: Pro- vided, the governor should commence the same under the power here granted. “The board employed Justus Post and Rene Paul as en- gineers, who made an experimental survey and estimates of (^ost, etc. “Post was paid for his services; Paul was not. The ques- tion is now presented — shall he be paidf “The fact that he was employed and devoted his time to the service of the state, appears from the report of the Canal Com- missioners made to the General Assembly in 1825. “The time of his employment has been proven to be 120 days — the amount claimed is $4.00 per day. To the commit- tee, the question is plain that the claim ought to be allowed.” Counsel for Complainant. The balance of that report would occupy a page and a half. I ask that the whole report go in with the letter. It is simply the letter of Thomas (chairman of the committee on canals of the senate) and the reply of Bucklin, and the committee’s report. Counsel for Defendant. The ])art that I read from is page 136, ])art of the proceedings, part of the report of the committee on 1169 canal and canal lands, which was reported to the Governor, trans- mitting annual reports made on the 25th of February, 1887 (Read- ing-) Page 137 : 3992 '‘The magnitude of the work and the difficulties attending its execution have been long known and considered. The representatives of the people did not engage in the work with- out due consideration of those difficulties. The interest which the nation has taken in the project is evidenced by the act of congress changing the northern boundary line of the state by the purchase from the Indians of a strip of territory extend- ing from the Illinois to the lake, with an eye single to this pro- ject, by the act of congress granting right of way to the state, and by the subsequent act granting lands of value sufficient to defray the whole cost of the work.’^ Also : 3993 "The surface of the canal as at present proposed to be constructed, is 60 feet, and bears the proportion of one and one-half to one to the surface of the canal as at first proposed. The depth of water is now six feet, whereas it was formerly four feet, consequently, the pressure of water being as the squares of the heights, and the leakage nearly as the square roots of the heights, the pressure will be more than doubled, and the leakage (taking into calculation the great surface), increased in proportion to one and a half to one. The quan- tity of water then that will be required to supply the evap- oration and leakage in a canal of the dimensions proposed, will be 150 cubic feet per minute per mile; and with reference to the peculiar character of the country through which the canal passes. I know of nothing which would justify a de- parture from the established rule, in regulating the supply of water. It is true, the upper level is situated in a very wet country, but the levels below dependent upon the summit for water, are located on ground very badly calculated to retain it, and it is possible that more than the ordinary supply may be required. "If the project of supplying the canal from Lake Michigan be abandoned, and the high level resorted to, the length of canal includingTeeders, to be supplied with water on the upper level is 56 miles, which will require 8,407 cubic feet per minute to supply the evaporation and leakage, and a further supply of 2,112 for lockage, making in all a minimum supply of 10;512 cubic feet per minute. Very respectfully. Your obedient servant, J. M. Buckltn.^’ 1170 Senate Report on Canal 1837. — Continued. 3995 Aside from tlie fact that according to the most authentic information, the Calamic and Desplaines do not afford suffi- cient water for the use of the canal, it is an admitted fact that the Calamic takes its rise in Indiana. From the latest maps it appears to bend through the corner of Illinois and pass into the lake near the state line. It is contended by some that it formerly passed into the lake in Indiana; it is, however, cer- tain that the State of Indiana may use the water of the river to the exclusion of Illinois. The committee are not advised of any improvement projected by the State of Indiana requiring the use of the river. But the testimony of Lieutenant Bur- nett herewith submitted, although not conclusive, tends strong- ly to prove that a company, incorporated by the State of Indiana have projected a canal, which will require the use of at least a half of the water of that stream. ‘‘Upon the point now under consideration, the committee have arrived at the following conclusions : “First, that the Calamic and Desplaines do not afford suffi- cient water for the use of the canal. “Second. That if they did, it would not be prudent or safe ' to rely upon the Calamic. “In arriving at these conclusions, the committee have relied upon the evidence referred to, consisting of extracts from re- ports and other authentic documents. It must be evident to all those who have given the subject any examination, that the point on the Calamic where it is proposed to take the water, is below the summit of the canal line, and only 2 feet 81-100 above the level of the lake. The erection of a dam across the Calamic would, therefore, be absolutely necessary, the effects and consequences of which can not with certainty be cal- culated or ascertained. One effect would doubtless be the overflowing of an immense tract of country and a subsequent loss of water by evaporation, absorption, etc. “Your committee will now proceed to the examination of the second and third reasons assigned why a change should be made in the summit division of the canal, viz.: the length of time required and the difficulty and cost of construction. These are reasons which have often been urged and acted upon by those who have opposed to the policy of the state’s undertaking so stupendous a work; but the judgment of the people has long since been pronounced against their suffi- ciency. Your committee will not pretend but that there are many difficulties to be encountered in the prosecution of the work, and that from five to eight years may be required for its completion. Having arrived at the same conclusion with all others who have examined the subject (except the commit- tee of the house) that in order to construct such a canal as the nation has a right to expect, the waters of the lake must 1171 '‘be used. The question naturally recurs, shall the state ])re- severe in the work, or shall the project be abandoned! These are the real questions to be considered, in answering the rea- sons assigned for the proposed change; and as these questions are general and applicable to the whole line of the work, their consideration will be deferred until the second proposition, for a change is considered and disposed of. "The second reason urged, viz.: that the cost of the im- provement will be greatly diminished, will not be controverted, but of the value of that improvement compared with the value of the canal and the comparative advantages of the two de- scriptions of improvements, have not been discussed in the re- port. "It is a work national in its character, and the people of Illinois should rejoice at the opportunity offered of being in- strumental in executing a work of such vast magnitude and im- portance. The eyes of the civilized world are resting upon us with intense interest, for our success in a work which prom- ises such extensive and incalculable advantages to these United States. The people of the United States are looking to the completion of this work, as forming the last link in an endless chain which shall forever hold these United States in the bonds and pledges of Union, and your committee ask in the name of the civilized world, in the name of the people of the United States, and in the name of Illinois, that no local, sectional or private interest be consulted in the decision about to be made. "The magnitude of the work, and the difficulties attending its execution have long been known and considered. The rep- resentatives of the people did not engage in the work without a due consideration of those difficulties. The interest which the nation has taken in this project is evidenced by the Act of Congress changing the northern boundary line of the state by purchase from the Indians of a strip of territory ex- tending from the Illinois to the lake with an eye single to this project, by the Act of Congress granting right of way to the state, and by the subsequent act granting land of value suffi- cient to defray the whole cost of the work. It has always been regarded as a national work, and the nation having fur- nished the means for its execution, have a right to expect that the work shall be projected and executed in a manner suited to the character and views of an united and enlightened peo- ple. The fund for this purpose is admitted on all hands to be ample, and no citizen of Illinois ought to be willing to see the faith of the state violated, public expectation disappointed, and the beneficience of the national government abused by au- thorizing any other description of work. "The questic!! may be confidently asked — why should any- one desire to disappoint the hopes and expectations of the na- 1172 Senate Report on Canal 1837. — 'Continued. ‘'tion in regard to the character of this work? Can it be sup- posed that the nation would have extended assistance by so large and extensive a grant of lands toward the execution of a project purely local, a project which at best would not accommodate the trade of Illinois alone five years hence. ''To engage in such a project would be sporting with the bounty of the nation and degrading to the character of the state. Who among us would be willing to stand forth before an enlightened, liberal and magnanimous nation, and pro- claim the sentiment; the nation has furnished us with means to execute a great national work, and although by accepting those means, we stand pledged to use them for the purpose intended, yet as the work of a totally different and greatly inferior character, can be executed for one-half the amount furnished, we will make such a work and vest the other half of those means in bank stock or in improvements of a char- acter purely local. If there be among us any who would be ^villing to assume such an attitude, and in the face of the world proclaim such a sentiment, it is to be hoped, for the honor of the people and dignity of the state, none such can be found in the walls of the legislature. Such a sentiment strikes at the very foundation of the public faith, and if acted upon would lead to a total subversion and overthrow of our free institutions. The proposition is too monstrous and involves consequences too disastrous to be entertained for a moment; and your committee will not act upon the pre- sumption, nor indulge the idea that any citizen of Illinois will ever be found giving countenance to such a sentiment. "Your committee are satisfied that the canal lands will de- fray all expenditures required in the construction of the canal, upon the enlarged plan proposed by the Canal Commis- sioners, and they hope to see the time when its navigation will be made free to all the people of these United States. "There should be no question asked in regard to a supply of water from any other source than the lake, so long as it is known that the means furnished by the nation are simply suffi- cient to execute the work. In the completion of such a pro- ject, computations of time should be made with reference to the existence of the union, and not with reference to the growth of a village. If, contrary to all calculations, eight or fifteen years shall be required for its completion, this would not justify the state or the people in a violation of their plighted faith. The time is not distant when Illinois must stand at the head and in the front of all of the western states, and when that time shall arrive, that nothing could be a source of greater mortification to her citizens or her sisters, than a knowledge that in her infancy, she had been guilty of a violation of public faith. 1173 ‘‘Your committee are of the opinion that a lateral canal con- necting the waters of the Illinois and Michigan Canal with the waters of the Calamic, is practicable, and will probably be re- quired at some future time. Before any expenditure of money is authorized for that purpose, the consent of the State of Indiana should be obtained to the use of the water of that stream, and an agreement irrevocable, except by the consent of both states, should be entered into, fixing the terms upon which the water may be used, and the terms upon which the citizens of Illinois shall be allowed to navigate said river. “Your committee highly approve of the decision of the coin- • missioners fixing the size and dimensions of the canal, and they cannot but remark, that nothing but the greatest in- dustry and attention to their duties could have enabled the commissioners to have made such progress in the prosecution of the work. “It appears from the report of the commissioners that no addition will be required to the canal fund during the present year, but that provision must be made for the year 1838. For this purpose, it is proposed to sell alternate lots in the town at the termination of the canal, and other towns along the line, to the amount of $1,000,000, and to authorize a further loan of $500,000 in the event of that amount being required. “In the present state of things it is deemed bad policy to bring into market any of the canal lands. It is believed that under the provisions of an Act passed during the present ses- sion, those lands can be protected against all further depreda- tions. To carry out the views of the committee, they report a bill, and recommend its passage.” 4003 Alsb, on page 210: “Previous to 1816 the United Tribes of Indians known as Ot- tawas, Chippewas and Pottawattomies, claimed all the land between Chicago and the mouth of the Fox Eiver. In order to secure undisputed possession of the river between these two points, a treaty was arranged between these tribes and Ninian Edwards, William Clark and August Chonteau, commission- ers plenipotentiary of the United States; this treaty was con- summated the 24th day of August, 1816, and was signed by the above named commissioners and F. Assikinock, otherwise known as Black Partridge, chief of the United Tribes. The object in securing this strip was to construct a military road to facilitate the building of the proposed ship canal.” Also, on the preceding page, from Woodruff’s History of Will County : “The project of a ship canal to connect the waters of Lake Michigan with the navigable waters of the Illinois Eiver was first suggested during the war of 1812, by some writer in 1174 Senate Report on Canal 1837. — Continued. the Niles Eegister in 1816. The title to a strip 20 miles wide was obtained of the Indians with a view to such work.^^ Also, from page 269 of the report of E. W. Willard, land agent, in the same volume, referring to the Indian question, there was • read as follows: 4006 ‘^In the various histories of Illinois there has been little said of the Illinois and Michigan Canal. The work was na- tional in its character and its progress was observed with intense interest throughout all the states. The interest which the general government had taken in the project is evidenced by the Act of Congress changing the northern boundary lines of the state, by purchasing from the Indians a strip of terri- tory extending from the Illinois Elver to Lake Michigan — by the Act of Congress of 1822, granting the right of way to the state, and the act of 1827 granting land to defray the cost of construction.^’ 4007 Page 204 and 205 from the report of William Grooding, chief engineer of the canal, dated canal office, Lockport, December 15, 1842, showing gauge readings, introduced in evidence. (Objection.) The report shows ‘^Gauges of Calumet Eiver by U. S. engineers — 17,281 per minute. By Bucklin, 5,333 per minute. S. Desplaines Eiver, Post & Paul, 1950, by Bucklin 1,000 per min. S. DuPage Eiver, U. S. Engineers, 1665, by Bucklin 6916 per min. The aggregate minimum discharge of the three rivers would be thus shown: 4008 Calumet 5,333, Desplaines 1,000, DuPage 1,655=7,998 cubic feet per minute. This quantity of water was to supply filtra- tion and evaporation of 74 miles of canal, necessary lockage water and loss at dams and upon Calumet feeder. It is, therefore, obvi- ous that there would have been barely a supply for a canal of ordinary dimensions, admitting that the water could have been introduced (as it might have been) at the points desired. Quantity of water in all these streams continues to diminish till the 1st of November, when the total would be about 7,- 4009 300 cubic feet per minute for all three rivers. The water nec- essary to supply the canal from Chicago to Marseilles is 9,924 cubic feet per minute, or a deficiency of 2,624 cubic feet per minute. 1175 There would he some loss at the dam at the Calumet, upon three or four miles of the feeder, and also at the DuPage dam. It would be safe to calculate, however, that there could be introduced into the canal from these three rivers 6,300 cubic feet per minute. The total supply needed is 9,924 or a deficiency of 3,624 cubic feet per minute. 4010 Here complainants asked that part of the gauge reading shown on page 202 of said report be read, as follows: Desplaines Eiver at Cache Island, 117,000 feet per hour. DuPage River at Cache Island, 114,000 feet per hour. Aux Sable River at Cache Island, 60,000 feet per hour. Fox River at Cache Island, 450,000 feet per hour. The report states that the engineer’s remark in relation to these gauges that the results are predicated upon the present stage of water, and that the quantities may sometimes be lower. 4012 The defendant here introduced certified copies of certain records of the Will County, Illinois, Circuit Court, in the case of James McKee v. The Board of Canal Commissioners of 4019 the Illinois & Michigan Canal, the final order of said Circuit Court providing ^Dhat the said James McKee is entitled to damages for his land, mill site water and water privileges taken from him by the defendants for the construction of the Illinois and Michigan Canal; and the said Court do assess the damages of the said James McKee on occasion of the premises at the sum of seven- teen thousand six hundred and fifty dollars upon his releas- 4023 ing to the commissioners the land taken.” Deed of James McKee and Sally McKee, his wife, in conformity with the said decree. 4030 Certificate of recording of said deed. 4031 Thereupon counsel for the defendant offered and read in evidence the deposition of Stephen J. Williams, a witness for defendant. (For rulings on same see Abstract of Deymsitions, supra, p. 522.) 4032 Thereupon counsel for the defendant offered and read in evidence the deposition of William S. Meyer, a witness for the defendant. (For rulings on same see abstract. of depositions, supra, p. 530.) 1176 Thereupon counsel for the defendant offered and read in evi- dence the deposition of George E. Gurney, a witness for the de- fendant. (For rulings on same see abstract of depositions, supra, p. 532.) Thereupon counsel for the defendant offered and read in 4033 evidence the deposition of Xavier Munch, a witness for the defendant. (For rulings on same see abstract of depositions, supra, p. 539.) Joseph E. McCullough, a witness for the defendant, testified as follows: Direct Examination. 4034 My name is Joseph E. McCullough. I live at St. Louis, Missouri. I am sixty-two years old. I am a steamboat mas- ter and pilot. I have been a pilot for forty years and a master for twenty-seven years. I commenced to learn the river in 1862, served an apprenticeship until 1865, got my license from Cincin- nati to Memphis on the Mississippi Eiver, afterwards learned the river from St. Louis to New Orleans and commenced piloting there in 1867. Learned the Cumberland Eiver just after the war, 1862 or 1863; I am a uilot from West Virginia — Huntington, West Virginia, to New Orleans, and from St. Louis to New Orleans, and from Nashville on the Cumberland to its mouth. Was one of the founders and am president of the Pilot Organization, a benevolent organization. The most rapid river I ever navigated was the falls of the Ohio and Harbor Shoals on the Cumberland. Took a boat over the falls of the Ohio twice this season. Have not been over the Cum- berland for a good many years. Have never navigated more dif- ficult or more rapid waters in any river. Saw the Desplaines Eiver in April, 1908, and again this morning (June 2, 1908) from Joliet down to the mouth of the river. I certainly think it is not navigable. (Objection.) It could not be used for 4038 useful purposes of commerce. It is a hard-bottomed river with a very rapid current, very crooked and very narrow. I don’t think that it would be possible for any steamboat on earth that I ever saw or ever will be here to either ascend or descend 1177 it. This river is much swifter than the falls of the Ohio or 4039 the Harbor Shoals of the Cumberland. Much swifter than the Des Moines and Eock Island Eapids on the Mississippi. Never knew of any steamboat in my experience that could navi- gate the Desplaines River. Assuming that 450,000 cubic feet a minute of water has been added to the natural flow of the Des- plaines River, I would say that in its natural condition it would go dry. 4040 I am familiar with the process of cordelling. It is just simply to get out with a lot of men, take a line over the shoul- der and go to pulling. I am familiar with the process of w^arping', which is done by laying a line to the bank, or even laying an an- chor out in the river, using your steam capstan and nigger. 4041 A boat could not be cordelled on the Desplaines River be- cause it is too crooked; you could not get out on the bank. Nor could a boat be warped, because you could not get any craft that you could lay an anchor with, and even were an anchor laid, a boat could not be hauled up the river by it, because the current would swing it into the banks. I have a boat that draws but two feet of water, and I would not attempt to try to take her 4042 down the Desplaines. I do not think this river here could be navigated with a good sized canoe in safety. Cross-Examination. The steepest rapids I ever passed over are the Ohio Rapids. 4044 The fall there is about 28 feet from the head to the foot of the fall, which is about two miles long. The shoals of the Cumberland River are a little over a mile in length, and the 4046 fall is about eight feet. In shallow water they have to warp over it, or did before the Government placed a lock and dam, 4047 which gives a slack water navigation. I have heard of the Snake River, but do not know whether it is navigable or not. 4048 If you had all the water needed to make the best navigation, I would not say you could get up and down a slope over four or five feet to the mile. When navigation is accomplished over the falls of the Ohio, the river is banked full, with very little fall. Going up the river is the hard part. In going over the Cumber- 1178 M cC idlougli, — Cross-Exam . — C on tinii ed. land Shoals in low water, boats have to be warped along. 4050 If I were told, even by Government engineers, that naviga- tion was accomplished on the Snake Kiver, in Oregon, over a fall of 29 feet in one mile, I would have to be shown the river before I would believe it. 4051 There are a number of dams, wing dams, built in the Mis- sissippi Eiver, simply built out from the shore to narrow the stream. In a number of places they have helped the river, but the balance they have made worse. Dredges are working in the river, but they do not accomplish much, for the reason that whatever is dredged out is washed right back in again. I believe a 14-foot channel can be made through the valley, but not with dredges. I think if they were to wall up the banks of the 3Iissis- sippi Eiver and narrow it in its widest place it will dig its own channel. All the navigation I have participated in is such as has been mentioned on the Mississippi, Ohio and Cumberland Eivers. 4055 I have never gone up or down the St. Lawrence Eiver, the Columbia or the Snake, nor do I know how they are navi- gated. I did not say that no boat had ever navigated the Desplaines Eiver; what I said was that I did not think that there ever 4057 would be a boat come up or down. The only small boat I have had any experience with was a small gasoline boat which would, in my judgment, carry less than eight tons. I took the boat to Memphis with a small party a year ago this spring. With that exception I have never had to do with a boat of 4058 that sort. I have seen a great many boats used in commer- cial navigation that were only capable of carrying about ten tons. Q. Do you mean boats that are engaged in carrying freight? A. No, sir; pleasure boats. A boat 12 feet wide, flat bottomed, 60 or 70 feet long, could 4059 carry ten tons of freight on six or seven inches of water. When I saw the Desplaines Eiver I knew it was a rock bottom stream, because of the boulders that showed in the river. Boulders would not make the same appearance in a mud 4061 bottom because a mud bottom would deaden the current. 1179 Re-direct Llxamination. A boat 60 to 70 feet long and 12 feet wide, such as lias been described, if operated by steam, could not carry ten tons of freight, because she would be loaded with machinery. It 4063 would take six or eight inches of water to carry her ma- chinery. Well, I said at first, and I will stick to my text, I don’t think you could bring a canoe up the Desplaines Kiver. My record as a navigator and pilot, if I do say it myself, I can prove it, there are few equals and none my superiors. In the list of boats shown on page 119 of Executive Document No. 264, being a survey of a waterway from Lake Michigan to the Illinois Kiver, I recognize the names of a great many boats with which I am familiar. The depth of the boats Abner O’Neil, Adam Jacobs, Albert F. Wills, Alice Brown, Artemus Lamb, 4067 E. B. Wood, B. E. Kay, Bald Eagle, as given in that list, is the depth of the boats empty. As to the Alex Swift, Belle McGowan and Big Kanawha, they are towboats, carry no freight, and the depth given is their depth loaded with coal for their own use. From my examination of this list, the depths given are for the boats empty, except the passenger l)oats., Re-cross Examination. 4069 In the boats which I have mentioned, where the table gives the length and breadth and depth, in referring to the depth it means the extent to which you can put the shallowest part of your boat down into the water, loaded. 4074 Thomas F. Boyle, a witness for the defendant, testified as follows: Direct Examination. My name is Thomas F. Boyle. I am about sixty years old and live at St. Louis, Missouri. I have been on the river since 1867; got a first class pilot’s license in 1871, and have had a master’s license for over 25 years. My license covers from Grafton 4075 to St. Louis and New Orleans; the Ohio Kiver to Paducah, the Ouachita Kiver and its tributaries and the Arkansas Kiver to Little Kock. I piloted for ten years during the cotton 1180 Boyle, — Direct Exam.— Continued. seasons on tlie Arkansas Eiver, before they built tlie railroad. During the summer season there was not enough water to run a boat. I have been on the biggest boat that ever left New Orleans, and I have been on the smallest of them. The Arkansas 4077 Eiver is the toughest river on earth, the worst of them all. I piloted a big boat on that river, and when there was not enough water for it, I piloted a small one. The lightest boat I ever piloted on that river does not draw over 18 inches. I know the John H. Harbin. It is a very small boat; does not draw over 12 inches. I saw the Desplaines Eiver once last April, and again this morn- ing with Captain McCullough; saw it from Joliet down to 4078 the mouth. It has a rough bottom, as far as I can under- stand; it is crooked, and no boat on earth, of any size, or any account, would ever attempt or no fellow would ever attempt to go up in it. 4079 Q. In your opinion is it or is it not a navigable stream? (Objection; overruled; exception.) A. It is not a navigable stream. It could not now be used for useful commercial purposes. Q. Assuming that over 400,000 cubic feet a second of water has been added to its natural condition, what would you say as to whether in its natural condition it was navigable? (Objection; overruled; exception.) A. I think if it dropped down a little there would be no water in there at all. Counsel for Defendant. I meant per minute when I said per second. 4080 The smallest boats that I have known navigated could not be taken up the Desplaines Eiver. I am familiar with the process of warping. I have never done any of it, but have seen a good deal of it, and could do it if I had to. Q. Could a boat be warped up by Treat’s Island on this river? A. I don’t think so. Q. Why not? Counsel for Complainant. Just a minute, your Honor. I 1181 move to exclude the last question and answer. It was an- 4081 swered so promptly I did not get time to object— on the ground that this witness has not qualified for that kind of an answer. He says he never did any of it in his life. Counsel for Defendant. He says he has seen it done and could do it himself. The Court. It may stand. It would w^ear the bottom off of a boat to warp it up either of the channels at Treat’s Island, because they are so narrow and crooked. You cannot warp a boat up a stream no wider than the boat is long; you could not get men enough to do it, line enough, power enough to do it. I saw obstructions in the river, consisting of snags, logs, bars and the rock bottom itself. I think you could not see the logs; they were under the breaks. We call that a break when you don’t see it; that is a break in the water. Cross-Examination. 4082 Of course the Desplaines could be made navigable, but it would take a great amount of money to do it. I cannot give any idea of what the greatest slope is that I have ever navi- 4086 gated. I have never had any experience on any rivers ex- cept these central rivers here, such as I have named. I have 4087 never been on the St. Lawrence, the Fox, or any of the New England rivers. I do not know whether a boat could be run on a river that had a fall of 16 feet to the mile, or one that had a fall of 10 feet to the mile. I have had no experience with 4088 reference to that. The Arkansas Eiver is pretty narrow. In some places it is so narrow that in low water you have to get a yawl down and go ahead and tow it. The river at those 4089 places is from a quarter of a mile to an eighth of a mile wide. The navigable part was about 40 feet wide. There are times when this boat the John H. Harbin cannot go up the river. That boat only draws about 12 inches light. You can 4090 load her down about between four to four and a half feet. The boat is about 150 or 160 feet long and about 30 feet beam. That is the smallest boat I ever saw on the Arkansas River. Below St. Louis the current in the Mississippi Eiver 4091 runs between six and seven miles an hour. I think a boat can be navigated in a greater current, depending on the 1182 l^ower of the boat. My boat can go against a ten-mile current, l)ut I have no idea how many feet per mile of slope would 4092 produce that current. From my view of the Desplaines the other day, I do not think there was over three and a half feet 4093 of water at the shoalest place. I could not tell how many cubic feet of water in the river passed at any one place. Re-direct Examination. 4094 There is no place below Grafton that I know of where there is a ten-mile current in the Mississippi; the current of that river averages about two and a half miles an hour. I might have na\dgated water at ten miles an hour, but I don’t know. Joseph E. McCullough, Recalled: 4095 In the navigation of swift waters, the depth of the water affects the possibilities of navigating such waters. For in- stance, in the Mississippi River, at flood time, of course the cur- rent is greater, at medium tide it is very much less, and when the river gets low, when it confines the current to small places, between bars and shoals, it is a great deal greater then, but I would 4096 say the average current in the Mississippi at medium stage would not be over two and a half to three miles an hour. If a steamboat comes up out of very deep water onto very shallow water, a stern wheel boat especially, she will pull the water right out from under her, and sit right down on it and just simply quit going at all. If she came up out of 12 feet of water into six, 4097 you wmuld -think she would stop. A sidewheel boat will do the same. In shoal water such a boat will not stem at all; she will throw the water right out from under her, and will not steer. The highest current that is navigable in shoal water would not be over four and a half to five mile current. Cross-Examination. 4098 The speed of the boat is a very important factor in deter- mining whether a boat can go up shallow streams with rapid currents, because the more rapidly you turn the wheels, the more water will be thrown out from under. 1183 Re-direct Examination. 4099 When you get to swift, shallow water, the number of revo- lutions you may turn your wheel will not insure a given rate of speed; you can’t run in swift, shallow water with the same revolutions that you can in deep water and make the same speed. Lyman E. Cooley, recalled : 4100 There was produced by the witness and offered and re- ceived in evidence various documents used in the prepara- tion of the consolidated profile Cooley Exhibit 3, as follows : Cooley Exhibit 21 — Profile of United States survey of 1902-4 (Atlas, p. 3963; Trans., p. 6596; Abst., p. 1930). Cooley Exhibit 22 — Sheet 55, accompanying the foregoing pro- file (Atlas, p. 3964; Trans., p. 6598; Al)st., p. 1930). Cooley Exhibit 23 — Sheet 56, accompanying said profile (Atlas, p. 3965; Trans., p. 6600; Abst., 1930). Cooley Exhibit 24 — Sheet 57, accompanying said profile (Atlas, p. 3966; Trans., p. 6602; Abst., p. 1931). (Note: The witness indicated that Sheets 11 and 12 in House Documents 263 of 1905 embrace the material Cooley Exhibits 22, 23 and 24 ; said Sheet 11 was marked Cooley Ex- hibit 22a (Atlas, p. 3967; Trans., 6604; Abst., p. 1931), and said Sheet 12, Cooley Exhibit 23a (Atlas, p. 39fe; Trans., p. 6606 ; Abst., p. 1931). Cooley Exhibit 25 — Sheet 13, Marshall’s survey of Waterway from Lake Michigan to the Illinois Eiver of 1890, being duplicate of Zarley Exhibit and the sheet used in cross-examination of wit- ness Mills, containing marks put thereon during said cross-exam- ination (Atlas, p. 3969; Trans., p. 6608; Abst., 1931). Cooley Exhibit 26 — Sheet 15 of Benyeaurd survey of 1893 (At- las, p. 3970; Trans., p. 6610; Abst., p. 1932). Cooley Exhibit 27— Sheet 16 of foregoing (Atlas, p. 3971 ; Trans., p. 6612; Abst., p. 1932). Cooley Exhibit 28 — Sheet 2 of plans of dam. May 20, 1908 (At- las, p. 3957; Trans., 6584; Abst., 1928). 1184 Cooley Exhibit 29 — Map and profile of Desplaines and Illinois Rivers, Lockport to Henry, by the Sanitary District of Chicago (Atlas, p. 3972; Trans., p. 6614; Abst., p. 1932). Cooley Exhibit 30 — Profile Lake Michigan to Cairo, Sheet No. I, by the Drainage District of Chicago (Atlas, p. 3973; Trans., p. 6616; Abst., p. 1932). Cooley Exhibit 31 — (Previously pnt in evidence as Cooley Ex- hibit 15.) — The Seddon profile, showing flow lines of Desplaines and Illinois Rivers between Joliet (Atlas, p. 3953; Trans., p. 6576; Abst., p. 1927). Pages 189 to 192, inclusive, of House Document 263, 59th Con- gress, First Session, 1905, containing data of discharge, measure- ments of Illinois and Desplaines Rivers (App. II, p. 3901; Trans., p. 6011; Abst., p. 1730). Pages 478 to 520, inclusive, of said House Document 263 (App. II, p. 3890; Trans., p. 6011; Abst., p. 1730). Cooley Exhibit 32 — Gauge readings of the Desplaines River at Riverside for the year 1905, taken from the Proceedings of the Sanitary District of Chicago, that year (x\pp. II, p. 3902; Trans., p. 6014; Abst., p. 1730). Cooley Exhibit 33 — (Previously introduced as Cooley Exhibit 13; Trans., p. 7642; Abst., p. 876.) — Pages 944 to 962, inclusive. Proceedings of the Board of Trustees of the Sanitary District of Chicago, November 27, 1907 (App. II, p. 3900; Trans., p. 5990; Abst., 1730). Cooley Exhibit 34 — Gauge readings. Riverside gauge, 1907, from Proceedings of Sanitary District of Chicago (App. II, p. 3903; Trans., p. 6028; Abst., p. 1730). Cooley Exhibit 4 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1900 (App. II, p. 3892; Trans., p. 5863; Abst., p. 1729). Cooley Exhibit 5 — Tabubtion of flow in main channel, by Sani- tary District of Chicago, for the year 1901 (App. II, p. 3893; Trans., p. 5881; Abst., p. 1729). Cooley Exhibit 6 — Tabulation of flow in main channel, by Saiii- 1185 tary District of Chicago, for the year 1902 (A])p. IT, p. 3894; Trans., p. 5899; Ahst., p. 1729). Cooley Exhibit 7 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1903 (App. II, p. 3895; Trans., p. 5918; Abst., p. 1729). Cooley Exhibit 8 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1904 (App. IT, p. 3890; Trans., p. 5937; Abst., p. 1729). Cooley Exhibit 9 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1905 (App. II, p. 3897; Trans., p. 5954; Abst., p. 1729). Cooley Exhibit 10 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1900 (Ai)p. II, p. 3898; Trans., p. 5909; Abst., p. 1730). Cooley Exhibit 11 — Tabulation of flow in main channel, by Sani- tary District of Chicago, for the year 1907 (App. II, p. 3899; Trans., p. 5984; Abst., p. 1730). Cooley Exhibit 35 — Original profile of Desplaines and Illinois Kivers, by General J. A. Wilson, 1807 (Atlas, p. 3974; Trans., p. 0018; Abst., p. 1933). Cooley Exhibit 30 — Original profile of Desplaines and Illinois Eivers, by Colonel J. A. Macomb, 1874 (Atlas, p. 3975; Trans., p. 0020; Abst., p. 1933). Profile Sheets 7 and 8, House Document 192, 54th Congress, Second Session, Eeport of Deep Waterways Commission (Atlas, pp. 3975a and 3970; Trans., pp. 0022-0024; Abst., p. 1933). Title page of said book is as follows: Eeport of the United States Deep Waterways Commission, prepared at Detroit, Michigan, December 18-22, 1890, by the Commissioners, James B. Angell, John E. Eussell, Lyman E. Cooley. Accompanied by the report on Technical Work and the Several Topical Eeports ancl Drawings pertaining there- to. January 18, 1897. — Deferred to the Committee on Inter- state and Foreign Commerce, with accompanying papers, and ordered to be printed. Washixgtox: Government Printing Office. 1897.” 1186 In response to a request of the defendant, I now produce 4102 a pamphlet by Judge Taylor entitled ‘‘The present aspect of the Mississippi Eiver Commission” and refer to pages 14 and 15, which is one of the sources from which I made up my opinion that the Desplaines Elver is navigable. (Upon objection by the defendant, the court did not allow the subject matter of said pamphlet to be introduced in the record.) 4116 Whereupon there was read in evidence, from the official report of the Sanitary District on the Lakes to the Gulf Waterway of 1890 and 1891, pages 3 and 4 and pages 8 and 9, the following : ‘ ‘ Historical Eesume. 1. First Thought of a AVateravay. — Great navigable rivers, separated by a short and lovv' portage, the favorite trail of the Indian and the trapper, guided the first explorers, Joliet, Marquette, LaSalle and Hennepin, whose names are memorialized in the geography of the route. The possibil- ities which dawned on these early visitors appealed to the pioneer until the “Chicago Portage” was better knov/n to statesmen a hundred years ago than to those of to-day, bet- ter known in an era when water transportation was the great instrument of commerce. 2. Early Consideration, 1808-1838. — Albert Gallatin, in his celebrated report of 1808, on means of internal communi- cation, gave a prominent place to the project of a ship canal across this portage, and in 1811 it was reported in Congress in a bin along with the projected Erie and other canals. From 1808-1825 Clinton and Morris urged the “proposed ship canal” as an extension of the Erie Canal to the Mississippi, thus opening up water communication by the lakes from the Hudson Eiver to the Gulf. In 1838 General Dearborn writes of the canal as “of such enlarged dimensions as to permit the passage of large vessels, being ten feet deep,” or all that could then be carried by lake across the St. Clair flats. The navigable waters of the Desplaines, as reserved for public use by the original land survey (made in 1821), approached at Summit within seven miles of the waters of Lake Michigan, at the South Branch of the Chicago Eiver at Bridgeport. 3. Early Surveys. The first surveys appear to have been made by Capt. Long in 1816, and the United States passed its first act in 1822, and legislated farther in 1827, 1833, 1842 and 1854. The State of Illinois took action in 1823, authorized canal construction in 1829, and inaugurated the work in 1836. The State submitted plans in 1825, a survey was made by 1187 ‘‘the United States in 1830, and further surveys by the State in 1833. 4. Canal Versus Kiver: Canal Constructed. — The ques- tion of canal or slackwater (locks and dams in the river) be- tween La Salle and Joliet was in controversy, and with the present it can be said was wrongly decided in favor of the canal. The work was prosecuted under various financial vicis- situdes, and finally opened in 1848 on a modified plan, with summit level across the ‘Chicago Divide’ eight feet above low lake level and supplied from the Calumet River by a feeder through the Sag, a side branch of the ancient outlet leading out by Blue Island. This summit level was finally cut down to lake level, according to the original plan, in 1866-1871, by the City of Chicago for sanitary purposes, thus fulfilling in a minor degree the dream of two hundred years, a flow of water from the Great Lakes to the ^Mississippi. III. The Policy of the State and the Sanitary District. 1. State Legislation. The policy of the State of Illinois and of the Sanitary District of Chicago is defined in the leg- islation by the General Assembly of 1889, viz. : 1. An act to create Sanitary Districts and to remove ob- structions in the Desplaines and Illinois Rivers. Apuroved May 29, 1889. In force July 1, 1889. 2. An act in reference to the improvement of the Illinois and Desplaines Rivers, and to rejieal an act entitled, ‘An Act to cede certain locks and dams in the Illinois River to the United States. Approved May 31, 1887. In force May 31, 1887.’ Approved June 4, 1889. In force July 1, 1889. Joint resolution defining the policy of the State in regard to a waterway of the greatest jiracticable depth and useful- ness for navigation from Lake Michia'an via the Desplaines and Illinois Rivers, and to encourage the construction of feeders thereto of like proportions and usefulness : 2. Organization of the Sanitary District. This policy was further defined and the laws given a practicable bear- ing by the petition for a sanitary district, the decision of the three judges acting as a commission to determine the boun- daries of said district and the vote of 80,000 electors against less than 200, by which the Sanitary District of Chicago be- came an accomplished fact. 3. Statement of policy. The policy thus defined may be epitomized as follows: 1. To construct a waterway of a capacity of not less than 10,000 cubic feet per second (600,000 cubic feet per minute) from Lake Michigan at or near the Chicago River across the Chicago Divide of a width of not less than 160 feet and of a depth of not less than 18 feet, to some point on the Desplaines River where the water may be released to the public river anywhere between Lockport and Lake Joliet. The joint res- 1188 Extract, — Lakes to Gulf Waterway. — ■Continued. “olution in contemplation of co-operation by the United States, specifies the depth at not less than 22 feet to Lake Joliet. 2. To secure a depth of not less than 14 feet from Lake Joliet to La Salle. 3. To so design the works from Lake Michigan to La Salle as to permit further developments for any additional capacity and for a depth from Lake Joliet to La Salle equal to that across the Chicago Divide. 4. To remove the state works at Henry and at Copperas Creek, on the lower Illinois, within four years or sooner, if accession of water will permit, and to stop work upon the Government locks and dams at La Grange and Kampsville, ,and to improve the lower river from La Salle to the mouth in such manner as to develop progressively all the depth prac- ticable by the aid of a large water supply from Lake Michi- ‘ gan at Chicago.^ 4. Work of the Sanitary District. The Sanitary District is obligated to construct a channel not less than 18 feet deep and of not less than the specified capacity across the Chicago Divide and may deliver the water to the public river at any point between Lockport and Lake Joliet.’’ The preface of said book reading as follows: ^^To the Board of Trustees of the Sanitary District of Chicago. Gentlemen : — 4122 I submit herewith a preliminary report which is designed to cover the issues involved in a waterway from the Great Lakes to the Gulf of Mexico, and the relations which such waterway may bear to the Sanitary District of Chicago. (Signed) L. E. Cooley, Chief Engineer. Chicago, August, 1890.” The court thereupon ruled that documents which were used in the prej^aration of the profile Cooley Exhibit 3, were properly admitted in evidence. 4123 There was offered in evidence Cooley Exhibit 37, being the document known as Continental Waterway Profile, coun- sel for complainant stating that the same had come to their at- tention since the introduction of evidence in chief and urging that the same was properly admissible at this time as evidence in chief under the reservation as to matters overlooked or after- wards discovered, to the admission of which document counsel for the defendant objected, which objection the court sus- tained. 1189 4124 Tliere was offered, received and read in evidence a passage in the annual report of the Chief of Engineers of th United States Army, part 2 1883, pages 1340 to 1345, (a part of which is above the falls, and part below the falls in the Missouri River), as follows, to-wit: 4125 ‘‘There is sufficient water for light draught boats. The practical difficulties are the great slope and consequent rapid current and the narrowness of some of the chutes. From Stubb’s Ferry to the foot of Blackbird Ripple, a distance of 68 3/4 miles, there is an average fall of 3.89 feet to the mile. This comprises the canyon section of the river. The ob- structions are gravel shoals, in wide or divided reaches of the river, and boulders. Between Stubb’s and Gibson’s ferries there are fifteen places at which the depth at low water is less than 2.5 feet, and twenty-eight places in which the depth is less than three feet. Of the fifteen places there are three at which the shoal is short and smootli, and the water is barely less than 2.5 feet. No improvements have been estimated for at those places. From Gibson’s Ferry to Sun River, the slope is very uniform and about 0.49 foot to the mile. The river is sinuous, the cross section very much larger than above and the depth everywhere sufficient for low water naviga- tion. Below is given a table of locations and estimated cost of improvements necessary to obtain a channel depth of 2.5 feet. The estimates are for dams of stone alone. The depth of 2.5 feet is considered sufficient for the demands of any com- merce which may resort to this portion of the river. A possi- ble landing for Helena freight is just below Twin Islands. From that point to Helena the distance is seventeen miles. From Stubbs’ Ferry to Helena it is twelve miles. Hence witli an additional land haul of five miles there would be saved a haul of eighteen miles of the most difficult portion of the river, and improvements costing about $17,000 or about one- third of the total cost of improving the 130 miles of the river. From Twin Islands to Sun River, 112 miles, the cost of im- proving the river to a depth of 2.5 feet would be about $33,000, or about $300 per mile. Considering only the por- tions upon which these improvements would be made, the cost of the 47 miles from Twin Islands to the foot of Lone Pine IHalf Breed) Rapids would be about $700 per mile. Table showing slopes and location of improvements re- quired, and estimated cost of same to obtain a 2.5 foot chan- nel from Stubbs’ Ferry to Sun River, in the Missouri River: 1190 U. S. Eng. Bep. 1883 . — Continued, Locations E-S E o S-s ‘Excessive slope s (/) T3 C a (U u. u u aj -a .-—Contin%ied. “increased depth on the reef. The term reef is here used ar- bitrarily (and will be so used throughout) to indicate a sub- merged gravel bar as distinguished from the larger and more sandy bars which during low water assume almost the pro- portion of islands. 2. Acker’s Island (sketch No. 2) — a gravel reef makes from the head of the island toward the right bank, leaving a very narrow and crooked channel. The two heavy dots indicate a snag and rocks which should be removed. The left chute should be closed. Ackley Bars — The river is here divided into two chutes by bars, and there are rocks in the channel near the foot of the bars. The left chute should be closed by a dam and the rocks removed. 4. Bluft Rapids (Sketch No. 3) — The river is here divided into two chutes by Gould Island, and there are few rocks near the head of the channel or right chute. The left chute should be closed and the rocks removed. 5. Kipp’s Rapids — Broad, shallow, and full of rocks. Water very swift. A good channel should be made by a removal of some of the rocks. 6. Eagle Reef (Sketch No. 4) — The channel here is very narrow and crosses the rocks as shown in the sketch. The chute A closes of itself during low water. Some of the rocks should be removed. 7. Hole in the Wall — At Hole in the Wall the river is di- vided into different chutes by three bars. The water is shal- low, and an increase of depth should be obtained by closing some of the chutes. 8. McKnight’s Bars — Here the channel is to the left of the bars; it is very narrow, and contains rocks which should be removed. 9. Rapids half a mile below McKnight’s Bars (Sketch No. 5) — The river at this point is obstructed by two reefs of boulders, as shown in the sketch. Rocks should be removed from a point of each of these reefs so as to straighten the channel. 10. Double Islands — At the Double Islands, just below the Niches, the river was divided into two chutes, the ‘suck’ be- ing at the right. Boulders lie across the channel at the head of the islands, running obliquely up stream toward the right bank. These boulders should be removed. 11. Pablost Rapids — The Pablost Rapids commence at Point of Rocks, and are quite long and broad. There is a sufficient depth of water, but the channel is filled with bould- ers. A free channel should be made by the removal of some of the boulders. 12. Holmes’ Rapids. (Sketch No. 6) — These rapids com- mence above Birch Creek, and are over a mile in length. The 1195 water is very swift, and there are a number of boulders in the channel. Boats cannot pass these rapids during low water on account of tlie boulders. A clear channel should be made by removing some of them. 13. Lone Rock Rapids. — Here the river is divided into two chutes by a very long, narrow bar which runs up close to the right bank, leaving a narrow but deep channel, which, how- ever, has situated in it a large rock some 12 feet in diameter, and which cannot be passed in low water. The removal of this rock would make a channel a good and safe one. 14. Big Boulder — This boulder projects about two feet above low water, and has damaged several boats. It should be removed. 15. Gallatin Rapids — The obstruction at this point con- sists of a broad diagonal reef of boulders. It is difficult for even a Mackinac to pass without hitting. A channel should be made here by removing boulders. 16. Bear’s Rapids. — At this point there is a bad reef of boulders which cannot be passed by steam boats during low water. A channel should be made by removing boulders. 17. Dauphin’s Rapids — At a small island above the rapids there are a few rocks in the channel which should be removed. The work on the Rapids themselves should be continued and finished. For a distance of about eight miles below the foot of the Rapids proper the channel is obstructed at various places by rocks which should be removed. 18. Magpie Rapids — The removal of rocks is all that is required here. 19. Bird’s Rapids. — These rapids are caused by a rocky reef which extends out from the right bank. There is plenty of water, but the channel is only about twenty feet wide at law water and should be widened by the removal of some of the rocks. 20. Sturgeon Island — There is plenty of water in the channel, but at the head of the island there is a boat ‘suck’ into the left chute ad the boats are sometimes drawn over onto the bar. This can be prevented by closing the left chute with a dam. 21. Snake Point. — The lateral chute here should be closed by a dam. 22. Cow Island — The Dam closing the middle chute and marked on the map ‘Proposed dam’ should be built and the upper one should be finished. There should also be a short spur at the foot of the islands. 23. Grand Island (Sketch No. 8) — The difficulties at this point are caused by two gravel reefs, one at the head and the other at the foot of the island. The water on these reefs is very shoal, being only twenty-one inches in depth at low water stage. All the lateral chutes should be closed with 1196 V. S. Eng. Rep. 1883. — Continued. clams, and it will probably be found necessary to rake the bars and build wing dams to raise the water on the reefs. 24. Two Calf Islands (Sketch No. 7) — At this point the lateral chutes should be closed by dams.” * 4413 There was also read the report of Mr. Stevens, the assist- ant engineer, found on page 699, as follows: Dauphin’s Eapids are caused by an excessive fall and an unusual widening of the river. There is no navigable three-foot channel clear of rocks for a distance of 3,100 feet. The lower part of the rapids is divided by a gravel bar 2,000 feet long, 300 feet wide, projecting about 2.5 feet above low water. The main channel assumes nearly the shape of the left bank. The chute to the right of the bar is used by boats during high water. In places the bottom is paved with boulders varying in size from six cubic inches to three cubic yards; these are often found in groups, one or more large rocks forming the nucleus about wdiich the others gather and take their places in the most compact form. Again it is of coarse gravel, studded with boulders buried deep, often reach- ing through to the sub-soil of clay. The low water discharge of the river at Dauphin’s Eapids is 11,062 cubic feet per second; of this, 5,047 cubic feet per second flows to the right of the bar. The surface-rate of current at low water in the main channel is 3.2 miles per hour; at a medium high stage it is 4.3 miles per hour. Only the better boats upon the river can stem it without the use of a line. The average fall for 3,200 feet is at the rate of 8.9 feet per mile, and for 1,000 feet of this distance it is 11.42 feet per mile. The slow rate of the current compared with the great fall can be accounted for by the fact of the shoal water and the presence of so many boulders. * * * Had the work been finished at Dauphin’s (this being the worst place on the river), nearly all of next year’s freight could have been carried through to Benton by river. As it now is, it will be necessary to wait for low water for the completion of the work, and freigTit taken up river during the latter part of the season will have to be unloaded below as formerly and hauled over land. I went to Cow Island the 28th of September. The river here is divided by two islands, separated by a narrow shute. About two-thirds of the water passes down the main chan- nel to the left. From the conformation of the river and its banks the main channel should be along the right bank. This channel is very narrow, and in places rocky and swift. The main channel to the left is obstructed by two coarse gravel bars and by a few rocks. The fall for a distance of 6,000 feet is at the rate of 5.16 feet per mile; the rate of the cur- 1197 “rent is 2.7 miles per hour. The improvements proposed were to remove the rocks in the main channel and to close the two island chutes by low water dams. Dams to be of boulders.” 4145 There was also read in evidence from the Government En- gineers’ “Annual Report of the Chief of Engineers, U. S. Army, part 5, 1891, Appendix W. W. 8, as follows : “Improvement of Upper Columbia and Snake Rivers, Oregon and Washington. Description of original condi- tion. Under the above head it has been deemed proper to of- ficially include the continuous Columbia and Snake Rivers from Celilo, at the head of the Dalles, to Lewiston. The Upper Columbia and Snake form a continuous line of navigable river, but broken by many rapids, rendering navi- gation difficult and dangerous. These rapids are in nearly every instance caused by rocky bars with occasional boulders, and the channels were crooked and narrow. Before improvement the ruling depth at low water was two to three feet on many of these bars, some of which were practically impassable at low water.” ***#=}{: Page 3212: “Recommendations and remarks. In the year of 1858 the Col. Wright, of 302 tons capacity, was built at the Des Chutes, to run between Celilo and Lewiston, that stretch of river of- ficially known as the Upper Columbia and Snake. In 1873, the Government commenced the work of improv- ing the navigation of river by removing -rocks, etc., and up to the present 'time $256,000 has been appropriated for this work. With the advent of railroads into the country the import- ance of the river as a commercial highway decreased, until now navigation is confined to the Snake River between Lew- iston and Riparia, a distance of 77 miles, there being no nav- igation between Celilo and Riparia, a distance of 189 miles. Upon this portion of the river between Lewiston and Ri- paria there are three steamboats : the Annie Faxon, Spokane and Almota. Only one of these is kept in commission, how- ever, and this makes tri-weekly trips G:>etween Lewiston and Riparia. These boats lay up in the winter when there is dan- ger from ice, and also when business on the river is slack. The Northern Pacific Railroad Company has two steamers at Pasco, but has made no use of them for several years. The problem of cheap transportation from the interior to the seaboard is one deserving of the most careful and earnest attention. The people are not satisfied with the rates exacted 1198 U. S. Eng. Bep. 1891.— Continued. the railroad companies, and in the minds of most of the people interested the solution of the problem lies in the nav- igation of the Columbia and Snake Elvers. There are two complete obstructions to navigation between the interior and the seaboard, the Dalles and the Cascades. ^‘Whatever part these rivers are to play in the transport tation of the future for the carriage of the products of the country, it must be evident that everything depends primarily on overcoming these obstructions at the Dalles and the Cas- cades.” Counsel foe Complainant. I think there will be no dispute and we perhaps ought to agree to it, that at the present the Govern- ment is building a canal I think four miles long, around that. Counsel foe Defendant. I think it is building a canal. ‘‘The project for the improvement of the river at the Dalles and Celilo Falls should include the project for the complete and permanent improvement of the upper rivers. These upper rivers in their present condition, or as they might be improved under the existing project, would be very heavily handicapped in competing with railroad transporta- tion. Such swift water navigation would be, to say the least, very unsatisfactory, and would hardly justify the large ex- penditure required for its accommodation at the Dalles and Cascades. There is no river in the United States or in the woidd of which I have or can obtain knowledge with slopes any- where near as great as the slopes of the Upper Columbia and Snake, which is navigated in a satisfactorily and commercially practicable way without the aid of locks and dams. It seems pertinent to compare these rivers with some of the other im- portant rivers of the country which have been improved, or for the improvement of which projects have been prepared. Upper Columbia and Snake rivers. From Celilo to Wal- lula the Columbia is 114 miles long; in this distance the fall is 165 feet or an average of one foot 5.4 inches per mile. This is reduced from railroad surveys. From Lewiston to its mouth the Snake is 130 miles in length, and has a total fall of 393 feet or average fall of 2 feet 101 inches per mile. In both rivers the fall is not at all uniform. There are long stretches of comparatively quiet water, broken by rapids and swifts, where the main amount of fall takes place. The records of* this office are very incomplete concern- ing the levels along the rivers. Most of the surveys made in former years were simply to detennine the obstructions met with, the depths of the water, channels, etc., and no deter- mination of differences of level and slopes were made. 1199 The following’ is a list of the principal rapids between Cel- lilo and Lewiston, with such x)hy steal data as to fall and slopes as are obtainable from the records of this office.” Counsel for Complainant. It commences with the Columbia and goes up to the mouth of the Snake River, and then commences at the Snake. 4150 Whereupon Counsel for Complainant read the following into the record : Dis- Slope Slope per 100 per Fall tance feet Mile Snake River Five Mile Rapids 2.3 1,000 .20 10.56 Fish Hook Rapids Long Crossing Rapids 12.5 0,600 .189 10.00 Pine Tree Rapids 11.5 5,000 .23 12.14 Monumental Rapids False Palous'e Rapids 1.7 300 . 56 29.88 Palouse Rapids 1.3 1,700 .070 4.00 Texas Rapids 14.4 0,600 .218 11.56 Little Goose Island Rapids Big Goose Island Rapids Rapids below Penewawa Rapids above Penewawa Atwood Island Rapid Elmota Rapid 2.7 3,000 .09 4.75 Rapid above Almota Lower Log Cabin Rapids Upper Log Cabin Rapids' 3.4 5,000 .068 . 3 . 59 Rapid above Granite Point 0.1 2,500 .244 12.88 Steptoe Rapid Rapid above White’s Ferry a *5 2,100 .15 7.92 4152 There was also offered, read and received in evidence from the report of the Chief of Engineers of the United States Army, for 1875, Part 2, in the part known as GG-2, headed ‘Gm- })rovement of thp Upper Columbia and Snake Rivers, Oregon and the Territories of Washington and Idaho,” found on page 772, — the heading and introductory paragraph being read for location purposes, as follows: ‘‘The sections of the two rivers to which reference is par- ticularly intended, comprise those portions from above the ‘Dalles’ on the Columbia, a succession of falls and rapids througlp deep canons and extending over a distance of fif- teen miles up to Priest’s Rapids, in Washington Territory, on the main fork of the river; and up its trilnitary, the Snake, to Lewison, in Idaho Territory, at junction with the Clearwater. These are the principal tributaries of the Co- lumbia, draining an immense extent of country, from the North, East, South and West.” 1200 Extract, — Coliimhia and Snake R. Eng. Rep. 1875. — Con. Also on page 773, under the heading, ‘‘Squally Hook Rapids” there was read as follows: “The contract called for the removal, above the level of the plane, six feet below lowest low water mark of both of the two rocks designated in the specifications, and for the de- positing of all debris at such suitable places as might be se- lected by the engineer in charge, or his deputed agent. The drilling and blasting continued from the 3d to the 26th of De- cember, and the clearing off of the loosened and broken up rock by raking and blasting occupied a week longer. By the removal of the two rocks a third, but not very large one, with only three and one-half feet of water upon it, appeared in the middle of the channel and had to be blasted out and brought down to grade. The work having been entirely exe- cuted, a final examination was made and a depth everywhere found exceeding that required by contract. The reefs which extend from the south shore cause, perhaps, a third of the en- tire river, when at low stage, to flow through this channel. The velocity of the current was obtained by several trials, and was found to be at the rate of about seven miles per hour; when the water is confined, and obtains a considerable fall, it mav i)ossiblv reach ten miles. In a distance of 1,800 feet the fall is 3.2.” 4153 Also on page 774, under the heading, “Upper Umatilla Rapids,” there was read as follows: “As stated in the last annual report and by reference to the map of the locality, ‘it will be seen that what has al- ways been known as the “Low water channel” and which has been used up to the present time is a very long and circuitous one, bounded on both sides by reefs and shoal water. Experi- enced pilots can alone navigate it.’ The one called the ‘high water channel’ which hitherto has only been used during the season of high water, and can now be safely run during the lowest stages of the water in which boats can pass over the rapids between Wallula, the shipping point of Y/alla-Walla, 35 miles distant from the river at the head of the Dalles at Celilo, has been made a direct and short one. At the termina- tion of the work of the season of 1873 and 1874, its width at the narrowest point was scarcely 40 feet. This, for several reasons, was by no means sufficient, and it was deemed ad- visal)le that an increased breadth be given to it as soon as the necessary funds became available for the purpose. It was also then stated upon the authority of the pilots, that, ‘notwith- standing the unevenness of the bottom on the outside of the channels from which the rocks had been removed, that boats ascending with a draught of four or even five feet of water would experience no difficulty; but that in descending; consid- 1201 erable risk would be encountered on account of the swiftness of the current, there being danger of a sudden sheer-otf on account of the boats not being entirely manageable. At the head of the rapid the water has a velocity of twelve miles an hour.^ ’’ ***###***# ^^The appropriation for the fiscal year was, however, in- adequate for the completion of the work. At this rapid, only one such rocks were selected for removal as would most benefit navigation. Only a limited quantity could be displaced in or- der not to exceed the amount. On account of the small yearly appropriations, the work at Umatilla Upper Rapids has al- ready extended over three working seasons. On the 2d of March, as already stated, the removal of the rocks was con- tinued at this locality and progressed as well as could be expected. On the 5th, the ice gorge above broke up, carrying away lines and causing the loss of anchors. Loose pieces con- tinued to come down, but being rotten failed to do much dam- age and did not cause any great delay in prosecuting the work. Occasionally terrific wind interfered with its advance- ment, although the gauge read but fifteen inches below zero of the low water mark at Umatilla ; still the necessity for its quick completion was urgent before any interruption should occur from a spring rise in the 'river. The water was also very clear, and consequently the drilling was easily effected and operations very much facilitated. By the 22nd of the month, at which date the limited appropriation became ex- hausted, all the rocks from the edge of the reef on the south side at the narrowest part of the channel had been removed; there were four large and two small ones. The entire im- provement contemplated, however, had not yet been accom- plished. A large mass of rock on the south side, at the head of the channel, where the width already attained was but 75 feet, still required displacement, as well as the four rocks on the north side previously estimated for as forming part of the yearly work. This portion of the improvem^ent, for the further enlargement of the channel, will form part of the operations during the approaching working season of the cur- rent fiscal year, 1875 to 1876. The depth of water obtained on the rocks after blasting was six feet at the very extreme low stage of the river existing at that time. The current then ran at the rate of twelve miles per hour for 150 feet at the upper entrance to the rapid. The length of the upper rapid is about 850 feet, with a present width of over 75 feet through- out, except immediately at the head ; the entire length of the rapids — upper, middle and lower — from the head to Umatilla, is about six miles.’’ 1202 Extract, — Columbia and Snake R. Eng. Rep. 1875. — Con. Also, on page 776, there was read as follows: ‘^Besides those works already enumerated, it is intended 4156 to apply during the current year a portion of the appropria- tion toward the improvement of Pine Tree Eapid, on the Snake River, about 32 miles above its mouth. This is the worst rapid at low water on the river; there is scarcely width enough for a boat to pass through, and at one time it was customary to warp around the opposite side of the island which here divides the river into two channels. If enlarged, each boat could make from three to four additional trips per season to Lewiston, Idaho Territory, situated at Lie junction with the Clearwater. While navigation remains open on the Columbia to Wallula during the entire season of low water, and is only suspended on account of the river becoming gorged with ice, still it only continues on the Snake for a period of about four months, from the first week in April to about the middle of August.” Omitting page 777, and continuing as follows: 4157 ''Between Palouse Landing and Lewiston, the present head of river steamboat navigation, a distance of about 62 miles, some dangerous rapids exist. In a few thousand feet after passing the mouth of the Palouse, the foot of the rapid of the same name is reached; this is considered a very bad one. At a low stage of water the channel is lined on both sides with rock; although not so narrow as 'Pine Tree,’ still it is scarcely wide enough at different points for boats to run in safety, in consequence of the strong currents and eddies tending to throw them against the rugged edges of the outline of the chute. During the high water in the last week of May, while a personal reconnaissance of the Snake was being made, more than an hour was occupied in ascendipg this rapid of about four miles in extent, and less than five minutes in making the descent.” Omitting and passing to page 779, continuing as follows: 4158 "The velocity of the current is greater in the Snake than in the Columbia River; in the former the general average is very nearly four miles an hour, and in the latter a little over three. In descending the Snake from Lewdston to Alpoway, 12 miles, the Tenino, with a very light freight, ran the dis- tance in 30 minutes; and down the Columbia, from the junc- tion to Wallula, 11 miles, in 35 minutes. The boats now em- ployed on the Columbia from Celilo to Wallula, and which during the highest stage of water in the Snake ascend to Lewiston are generally loaded to a depth to between three and a lialf and four feet; their capacity is from 100 to 150 tons of freight. The only three boats now engaged in the trado ai*e the Yhikima, Teiiino and Owyhee— named after some of the tributaries of the Columbia.’’ There was also read in evidence from the annual report of the Chief of Engineers, in 1905, in Volume 7 of the Reports of the War Department, Part 8, pages 2455 and 2456, the Chapter headed UU-9, on the continuation of the work upon the Upper Co- lumbia and Snake Rivers, as follows: 4159 ‘Mmprovement of Upper Columbia and Snake Rivers, Oregon, Washington and Idaho. ‘‘During December and until January 14 the dredge Tvat> engaged in raking and dredging Log Cabin and Offields Bars, these being the shoalest points between Lewiston and Ri])aria. The controlling depths on these bars before raking and dredg- ing were from two and a half to three feet, and were increased to four and a half feet. At Offields Bar, some 2,500 cubic yards of gravel were removed from the channel by dredging. ()n January 14 the dredge was laid up at the Lewiston moor- ings because of threatened freeze up on the river, and at the close of the fiscal year still is out of commission because of high water. No work has been done on the river above l^ewiston during the year. Regular boats have operated throughout the year between Riparia and Lewiston and intermittently above Lewiston as far as Imnalia during moderate river stages. In June of the i)i*esent year, on the occasion of the opening of the State Portage Railway — ” C’ouNSiiL FOR COMPLAINANT. By the Way, Mr. Reeves, perhaps you can tell us about the State Portage Railway. Was that the railway around the falls! C’ouNSEL FOR COMPLAINANT. That is as I understand it. “In June of the present year, on the occasion of the open- 4160 ing of the State Portage Railway, between the Dalles and Celilo, the steamer Mountain Gem made the run over the Snake and Columbia Rivers from Lewiston to Celilo and re- turn, with the river at about a 9-foot stage. This was the first continuous navigation by steamer over this stretch for some 23 years and was made without interruption. The River and Harbor Act of March 3, 1905, appropriated $25,000 for this improvement, and the project for expendi- ture of the sums provides for their use in operating the dredge between Lewiston and Imnaha, making repairs to ex- isting dams, in blasting out rocks from the channel, and in making surveys between Eureka and Pittsburgh Landing, which had been delayed on account of a lack of funds. 1204 At the close of the fiscal year the June high water in the Snake Eiver is receding and it is expected to begin operations with the dredge early in Jnly.’’ Counsel foe Defendant. That was running during the year from Eiparia to Lewiston? Counsel foe Complainant. Yes. Counsel foe Defendant. That is about 70 miles, is it not? Counsel foe Complainant. I think it is, Mr. Scott. Lyman E. Cooley, recalled as a witness for the complainant, testified as follows: Direct Examination. 4161 On page 1,196 of the abstract, I said, think I would ap- prove, possibly, of the specification which the company has already made in regard to the short piece of dam between the power station and the tow-path bank, with the top of it doubled or trebled in width, provided,” etc. Exhibit F, the specifications of the contract between the defend- ant and the contractor, Heyworth, is the specification to which I referred, which said document, marked ‘‘Cooley Exhibit 1, June 3, 1908,” was received in evidence, as was also said blue print, marked G1556, referred to therein, said “Cooley Exhibit 1, June 3, 1908,” reading as follows: “Exhibit F.” SPECIFICATIONS for the Eaethen Dam and Eoadway. 4168 1. Extent of Conteact: These specifications include the construction and completion of the earthen dam and roadway for the proposed Morris Hydro-Electric Plant of The Economy Light and Power Company, and in accordance with the following specifications and detail plans, numbered G1556, which are hereby made a part hereof. The work shall include: A. All earth filling required for said dam and roadway. 1205 B. All surface excavating, clearing and grul)bing re- quired in the construction of said dam and roadway. C. All paving required for the protection of the slopes. D. All macadam surfacing needed for the roadway. E. Following are the approximate quantities of work and material included in these specifications: Earth till 7,500 cubic yards Stone paving 1,000 square yards Macadam surface 370 square yards 2. Location and Description : The earthen dam included in these specifications shall occupy the space between the tow- path and the Power Station, and shall have the location as shown on the drawings. The roadway shall extend along the north side of the power house, as shown on the drawings. The dam and roadway shall be constructed of earth or other suit- able filling, in the manner described in the following specifi- cations. 3. Foundations: All trees, brush, bushes, stumps, de_bris and all other perishable materials shall be removed from the area to be filled. All materials cleared and grubbed shall be piled and burned, or shall be removed from the site. The foundation for the dam and roadway shall be then excavated to a depth sufficient to remove all loose or undesirable ma- terial, and to such a depth as the engineer may determine. Upon the foundation thus prepared shall be constructed the dam and roadway, as hereafter specified. 4. Coffer-dam and Pumping: The contractor shall fur- nish all coffer-dams and do all pumping necessary to protect and keep the work in proper condition for the satisfactory performance of the work to be done. Said coffer-dams shall be built in a substantial manner, and in accordance with the specifications for this work as contained in ‘‘Exhibit D.’’ 5. Embankment: (a) Description: The embankments for the dam and roadway shall be constructed to he width and slope as shown on the drawing, or such other slope and cross- section as the engineer may determine. The embankment shall be built by dumping the material in uniform layers, and to the full width thereof. The material so deposited shall be spread out in uniform layers not over eight (8) inches in thickness, and thoroughly rolled with a roller of approved 'Weight and dimensions. The slopes of the embankments shall be carefully and evenly dressed to the lines given ; all to the satisfaction of the Engineer. (b) Quality of Material: All material for the embank- ments shall be gravel, clay or earth, free from all organic matter, and be such as the engineer will approve. Any ma- 1206 Specifications for Dam, — Continued, terial used in said embankment and not so approved; shall be removed by the contractor at his own cost and expense, and shall in no case be estimated or paid for. (c) Boeuow Pits: The contractor shall make all neces- sary arrangements to secure the material for the embank- ment, and no material is to be taken from the site of pro- posed work without the consent and approval of the Engineer, except such material as may be removed during the excava- tion at the site of the power house. (d) Measukements : The measurement of all material used in the embankment shall be made in the embankment. 6. Boadway: (a) Macadam Surface: After the em- bankment is constructed to the height directed by the Engi- neer and when the embankment is finished, and the rolling is completed, there shall be deposited on the top a layer of broken limestone which will be six (6) inches in thickness after being completed. This stone shall be solid, compact stone, of a quality approved by the engineer. The stone shall be graded from the base to the top; the low^er four (4) inches of the macadam surface shall be composed of stone which will pass a two and one-half inch ring, and the remaining thickness shall be composed of stone which will pass a one (1) inch ring. After being spread over the embankment, each layer of stone shall be thoroughly rolled to the satisfaction of the engineer, after which there shall be spread over the surface a one (1) inch layer of fine limestone screenings to act as a surface and binder course. This surface layer shall be sprinkled, if necessary, and shall be rolled until it is thor- oughly compacted. The improved surface shall be of the dimensions, as shown on the plans. (b) Stone Paving: After the slopes of the embanlonents have been carefully and evenly dressed to the lines given, they shall be protected from washing by paving with stone; said stone shall be a hard and durable quality of limestone, approved by the engineer, at least four (4) inches in thick- ness, and of such surface dimensions as will admit of laying securely and evenly in the work. After being laid, the stone shall be tamped with a wooden tamper until brought to a solid bearing in the embankment. The spaces between the stones shall be filled with spauls, gravel and sand, to the sat- isfaction of the engineer. 7. Price and Measurement: (a) Earth Embankment: All earth fill to be used in the dam and roadway shall be measured in the embankment and shall be paid for by the cubic yard at the price named by the contractor in the pro- posal ; said price shall include the cost of all material and the cost of depositing same in the manner heretofore specified. 1207 Said ])rice shall also include the cost of all clearing and grub- })ing, and the cost of all labor necessary to prepare the foundations heretofore specified. Any materials measured and pafd for in excavation, and afterwards placed in the em- bankment will not be paid for in the embankment. (b) Stone Paving and Macadam Surface: All stone pav- ing and all macadam surface called for in these specifications shall be paid for by the square yard, at the price named in the proposal; said price shall include the cost of all materials and the cost of placing the same as described in the foregoing- specifications.” 4173 Q. Mr. Cooley, are there other reports than the one that you furnished in compliance with the suggestion of counsel, for the defense, as to the navigability of the Desplaines River, in which there is inherently the element of navigation in what is made in the reports? (Objection ; . sustained ; exception.) Counsel for Complainant. I now offer to prove, your Honor, that there are not less than from eight to ten official surveys of the Desplaines River, in which, by the reports of the engineers making these surveys, the engineers make their statement and their report upon the basis that the river is and was navigable. (Objection; sustained; exception.) Counsel for Complainant. Making it more specific still, 4174 those documents include the iMcComb report of 1874-5; Beny- aurd report of 1883-4; report of the Comstock Board of 1886-7; the report of Cooley to the Illinois Legislature in 1892-4; the report of the Ernst Board in 1904-5, House Document 263, re- port of Long in 1816-7 ; and the report of the Illinois Internal Improvement Commission, 1907; and the Cooley report to the Sanitary District, of 1890. (Objection; sustained: exception.) There was also introduced and reecived in evidence ^‘Cooley Exhibit 2 of June 3, 1908,” which said exhibit is as follows: 4175 ” Number of days at which the Riverside Gauge stood at or above certain elevations, in nineteen full years, — 1887 to 1907 inclusive. (a) Elevation 18 ft. corresponding to the Crest of Spill- way at Elevation 16.25 ft. and a volume of 4500 second-feet. (b) Elevation 13.8 ft. corresponding to Crest of Ogden dam at Elevation 11.73 ft. and a volume of 1052 second-feet. 1208 Cooley — Exhibit 2, — Continued. (c) Elevation 13 ft. corresponding to original Chicago Divide at Elevation 10.5 ft. at Summit, and volume 600 second- feet. (d) Elevation 12.4 ft. corresponding to Elevation 9.6 ft. at Summit at Twelve-mile Level, and volume 305 second-feet. (a) 18.0 (b) 13.8 (c) 13.0 (d) 12.4 Precipitat at Chicag 1887 5 75 89 172 29.13 1888 — 42 90 90 30.86 1889 — 35 61 106 34.95 1892 7 60 67 73 36.56 1893 5 54 80 105 27.47 1894 3 29 64 103 27.46 1895 1 15 21 34 32.38 1896 — 12 33 119 33.14 1897 9 77 99 134 25.85 1898 6 46 56 93 33.77 1899 — 30 42 81 26.49 1900 — 37 49 90 28.65 1901 5 25 31 38 24.52 1902 — 64 117 170 37.57 1903 6 65 94 151 28.09 1904 11 45 61 74 26.14 1905 5 37 57 105 35.36 1906 2 46 78 108 30.87 1907 8 85 150 182 35.10 Total 19 73 879 1339 2028 Average — 46.2 70.4 106.7 30.75 The data for 1905, 1906 and 1907 from Sanitary District Tabulation of flow through Desplaines River. Note: The average rainfall for the 37 years, 1871 to 1907 is 33.40. The average rainfall for the 28 years, 1843 to 1870 is 34.66. The average rainfall for the 65 years, 1843 to 1907 is 33.9. There was also introduced and received in evidence ^‘Cooley 4178 Exhibit 3 of June 3, 1908, which said exhibit is as follows : 1209 Animal Precipitation at Chicago, 1843 to 1897, inclusive. Eecord furnished by Prof. Henry J. Cox, U. S. Weather Bureau. Unofficial. 1843. . . .35.50 1844. . . .33.12 1845. . . .32.30 1846. .. .40.00 1847. .. .32.80 1848.. .. 44.40 1849. . . .34.20 1850.. .. 30.40 1851. . . .38.60 1852.. .. 38.80 1853. . . .36.40 1854.. .. 24.60 1855. . . .36.30 1856. . . .29.04 1857.. .. 39.83 1858. . . .47.10 1859.. .. 29.30 1860. . . .36.40 1861 39.30 1862.. .. 40.42 1863. . . .33.60 1864. . . .28.40 1865.. .. 40.20 1866.. ..36.30 1867. . . .22.41 1868. . . .36.48 1869.. .. 31.57 1870.. .. 22.92 Mn’s. . .34.66 U. S. Official. 1871 35.61 1872.. .. 29.07 1873. . . .36.41 1874. . . .28.63 1875.. .. 38.06 1876. . . .36.48 1877. . . .41.01 1878. . . .41.95 1879. . . .30.71 1880. . . .37.32 1881. . . .44.18 1882. . . .41.34 1883.. .. 45.86 1884. . . .34.61 1885.. .. 44.37 1886. . . .26.77 1887. . . .29.13 1888. . . .30.86 1889. . . .34.95 1890.. .. 32.69 1891. . . .26.54 1892. . . .36.56 1893. . . .27.47 1894. . . .27.46 1895. . . .32.38 1896.. .. 33.14 1897. . . .25.85 1898. . . .33.77 1899. . . .26.49 1900. . . .28.65 1901. . . .24.52 1902. .. .37.57 1903. . . .28.09 1904. . . .26.14 1905. . . .35.36 1906. . . .30.87 1907.. .. 35.10 Min 33.40 1210 4179 There was also introduced and received in evidence Cooler' Exhibit 4 of June 3, 1908, which said exhibit is as follows: ‘‘U. S. Department of Agriculture Weather Bureau. Chicago Forecast District Fourteenth Floor, Federal Building. Chicago, III., May J, 1908. Mr. Lyman E. Cooley, 21 Quincy St., Chicago, 111. Dear Sir: — Keplying to your request of the 30th ult., I beg to enclose herewith a copy of our Annual Meteorological Summary giv- ing the annual precipitation in Chicago from 1871 to* 1907, inclusive. Unofficial records in the possession of this office give the yearly rainfall from 1843 to 1870, inclusive. This record is as follows: 1843 35.50 1844 33.12 1845 32.30 1846 40.00 1847 32.80 1848 44.40 JHA-BXC 1849 34.20 1850 30.40 1851 38.60 1852 38.80 1853 36.40 1854 24.60 1855 36.30 1856 29.04 1857 39.83 1858 47.10 1859 29.30 1860 36.40 1861 39.30 1862 40.42 1863 33.60 1864 28.40 1865 40.20 1866 36.30 1867 22.41 1868 36.48 1869 31.57 1870 22.92 Very truly yours. Signed H. J. Cox, Professor of Meteorology.^^ 4180 Annual Meteorological Summary, referred to in the above letter, being Cooley Exhibit 5 of June 3, 1908. 4181 There was offered in evidence on the part of the defendant a letter from Lieutenant Colonel Bixby, in charge of the U. S. Engineers Office iii Chicago, addressed to Brigadier Gen. A. Mac- kenzie, Chief of Engineers of the U. S. Army, Washington, D. C., in reply to department letter No. E. D. 58726, of ]March 16, 1906, which said letter is as follows: ‘‘1. In reply to department letter (E. D. 58726), dated ]\Iarch 16, 1906, as to the proposed plans of a water power C^onq)any for a dam across the Desplaines Eiver, 111., just above its mouth, which have been verbally and informally pre- sented to your office by the Hon. H. ]\[. Snapp, and the water ])ower re])resentatives, I have herewith to submit report as fol- lows :” ***** ‘‘The agents of the water Power Company in question, infor- mally claim to have secured possession of all the land on each 1211 bank of the river necessary to allow for construction of the dam, and of its accessories, and to protect themselves from all future claims for overflowage created thereby, so far as any existing known rights are concerned. And they likewise claim that there is no existing State law, or United States law, which prohibits their legally going ahead with their proposed construction and that no special law is needed therefor. They admit, however, that in some minor matters they still lack necessary authority from the local Board of Supervisors to condemn certain properties which they still wish to acquire in order to facilitate or simplify their future work (such permis- sion, however, not being absolutely essential to such work) and they state that the Board of Supervisors are willing to grant such authority, as soon as it is evident that the purposed power dam construction will not interfere with the future development of the river for navigation purposes. The Water Power Company agents likewise state that their object In bringing the matter up before the War Department at present, is to make evident that the proposed dam con- struction not only does not conflict with any existing IT. S law, but also will assist, rather than injure, the possible fu- ture navigation of the Desplaines and Illinois Rivers’’ To the introduction of which letter the complainant by its solicitors objected, and the court reserved its ruling until a later time. Thereupon counsel for the defendant offered and read 4189 in evidence the deposition of James Boyne, a witness for the defendant. (For rulings on same see abstract of depositions supra, p. r345.) Thereupon counsel for defendant offered and read in evidence the deposition of Louis K. Stevens, a witness for the defendant. (For rulings on same see abstract of depositions supra, p. 547.) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Jacob Adler, a witness for the defendant. (For rulings on same see abstract of depositions supra, p. 561.) 4190 Counsel for Defendant. The question was up yester- day as to whether this language There is no river in the United States or in the world of which I have or can obtain knowl- edge with slopes anywhere near as great as the slopes of the 1212 Upper Columbia and Snake, which is navigated in a satisfactory and commercially practicable way without the aid of locks and dams.^’ Your honor will remember there was a misunderstanding as to whether that meant no other river or not, and therefore I ask counsel to read the connection. Whereupon there was read from the report of the Chief of Engineers of 1891, Part 5, page 3211, with the heading, ‘^Ee- sults obtained to June 30, 1890.’^ as follows: ‘‘Major W. A. Jones, in his annual report for the fiscal year ending June 30, 1889, says: Snake Eiver between Lewiston and the mouth has ordin- ary widths of 1,000 feet, a slope of 2.48 feet per mile, and a discharge of 26,000 cubic feet per second. All the bars have been removed to the extent of being no longer danger- ous to competent navigators who are acquainted with them, and, with the exception of Long Crossing Bar on the Snake, the required depth below the datum assumed at the time our project was adopted has been obtained. This datum, however, has been lowered about IJ feet, so that the ruling low-water depth on Snake Eiver outside of Long Crossing Bar is now 3 feet. This depth I consider sufficient for pres- ent purposes.” Also on page 3212, there was read as follows: 4193 “No amount of work on the upper rivers or improve- ment in their condition will relieve the interior of the thrall- dom of the railroads until means are found of carrying the products borne, or which may be borne, on the upper rivers past these great obstructions. During the past year a great deal of attention has been given to the subject by the legislatures of Oregon and Wash- ington, by the press, and citizens generally. Efforts were made by thq Legislature of the two States to bring about some co-operative action whereby the two States could join in building portage railroads at The Dalles and Cascades, but constitutional objections rendered this im- possible. The Legislature of Oregon then appropriated $60,- 000 for building a portage railroad at the Cascades in order to give immediate relief to the country centering at The Dalles City. This is now in process of construction. Several waterway conventions were held by people inter- ested in opening the river, which finally culminated in one held in Portland, April 8 and 9, 1891. This convention re- solved on the formation of a company, with a capital of $2,- 000,000, to build and operate portage railways at The Dalles and Cascades and build and run steamboats on the rivers. 1213 This company lias not yet perfected its organization, or raised its capital. Everything indicates a general and widespread belief that with the obstructions at The Dalles and Cascades removed there would be nothing of a serious nature standing in the way of cheap water transportation for the products of the great interior regions. So important and so vital to the whole scheme of utiliz- ing these rivers is the removal of the obstructions at The Dalles and Cascades, and so utterly useless is any improve- ment of an extensive character to the upper rivers until they are removed, that I am constrained to recommend that no work of any consequence be done upon these upi3er rivers until the great obstructions named are overcome either by the construction of a canal and locks, a boat railway or a portage railway at The Dalles and the completion of the canal at the Cascades. A little work upon that portion of the Snake between Riparia and Lewiston now navigated will be advisable from time to time to remove rocks and boulders brought into the channel by ice and freshets, but all other efforts should be concentrated upon the Dalles and Cascades if the rivers are to be opened and any general benefit derived from them. In connection with the proposed possible opening of the Columbia and Snake Rivers, there are several considerations which it seems proper I should lay before you. It is generally supposed that the Columbia and Snake above Celilo can be navigated in a commercially successful way in about their present conditions, bettered by such in- complete improvements as rock removal, bar scraping, etc., as contemplated under the present project. The Board of Engineers having under consideration the ob- structions to navigation of the Columbia at The Dalles and Celilo Falls, under date of December 18, 1888, state that the character of the future navigation of the river above Celilo is an element upon which details either of a boat railway or of a canal and locks depend; that no complete project for the river improvement has been made, and none could be made without a proper survey; that a survey is indispen- sable to determine the possibilities of navigation of the upper river, and that the estimated cost of this survey is $40,000, which ought to be given in one sum.” Counsel, eor Complainant. That is the omitted passage. Counsel eor Defendant. Following that is the one that we had our controversy about yesterday. Counsel for Complainant. Now comes the list. Following the 12U Extract, — Columbia and Snake R. — Continued. ►statement of the rapids in the Snake, is a list of rivers ocenpying a little over two pages. (Reading) : 4196 '‘Ohio River. — The Ohio River from Pittsburg to Cairo is 967 miles in length, and has a total fall of 426 feet, of which 26 feet are overcome by locks at Louisville. Leaving this 26 feet out of consideration, the average fall of the Ohio from Pittsburg to Cairo is 5 inches per mile. Even with this fall, which is so small in comparison with that of the Colum- bia and Snake, the project for the improvement of the Ohio to secure a minimum depth of 6 feet contemplates the con- struction of 68 locks and dams, at an estimated cost of over $38,000,000. One of these locks and dams at Davis Island was begun in 1878 and opened to navigation in 1885. Its cost was $910,000. Great Kanaivha River. — The Great Kanawha River, in West Virginia, from Kanawha Palls to the Ohio is 942 miles long, and in this distance has a fall of 107.92 feet, an average fall of 1 foot and 1.7 inches per mile. The project for the improvement of this river contemplates the Jbuilding of 12 locks and dams, at an estimated cost of over $4,000,fe0. Cumberland River. — The Cumberland River from Nash- ville to the Ohio is 298 miles long, and has a total fall of 122.3 feet, an average fall of 5 inches per mile. Colonel Barlow’s project for the improvement of this stretch of river consists in building 7 locks and dams and some channel improvements, at an estimated cost of about $ 2 , 000 , 000 . Colonel Barlow, in his report, after mentioning some of the rapids and shoals on the river^ says: ‘Efforts have hitherto .been made to reduce the fall over these shoals and thus lengthen the season of navigation by the usual method of wing dams and channel excavation. This class of work has been carried as far as seems expedient to continue it, and the results, although valuable, do not satisfy the interests of navigation; a more radical improvement, in keeping with that in progress on the river above Nashville being demanded.’ Kentucky River. — The Kentucky River from the Middle Fork to the Ohio is 258 miles long. In this distance the fall is 228 feet, an average fall per mile of 101 inches. The lower 95 miles was improved years ago by the State of Kentucky by the construction of 5 locks, with a total lift of 78 feet. It was estimated in 1879 that 12 more locks would be re- quired to reach the Middle Fork, the estimated cost of which was over $1,000,000. The above examples serve to show that rivers having far less slope than the Columbia and Snake can not furnish ade- 1215 quate and satisfactory navigation without the intervention of locks and dams. The experience on these rivers cited is an additional reason for the survey and preparation of a complete and consistent plan for the improvement of the Co- lumbia and Snake Eivers, in order that all work may be done in accordance with the plan, and that money may not be injudiciously and unwisely expended^ As a means of comparison the slopes of a number of other rivers which have been largely navigated are given. Mississippi River. — From Cairo to the Gulf of Mexico the Mississippi Eiver is 1,061.3 miles long; the fall is 280 feet; average fall 3.2 inches per mile. Missouri River. — From its mouth to Sioux City the Mis- souri Eiver is 803 miles long; the fall is 706 feet; average fall, 10.5 per mile. From Cow Island to Bismark the average fall is 9.3 inches per mile, and from Fort Benton to Coav Island the average fall is 2.07 feet per mile. Sacremento River. — From Eed Bluffs (head of navigable water), to Suisun Bay the Sacramento is 275 miles long; the fall is 245 feet; average fall 10.6 inches per mile. Arkansas River. — From its mouth to Little Eock the Ar- kansas is 176.4 miles long; the fall is 115.7 feet; an average fall of 7.9 inches per mile. From Little Eock to the mouth of the Canadian Eiver the distance is 249 miles, and the average fall is 10 inches per mile. Alabama River. — From Molhle to AYetumka the Alabama Eiver is 367 rniles long; the fall is 117 feet; an average fall of 3.8 inches per mile. European Rivers. — The rivers of Eussia which have played a great part in the transportation systems of the country are characterized by a gentle average slope and current. The Volga, from the Upper I)am to Astrakhan, is 2,184 miles long, and its average slope is 4J inches per mile. The Don for 394 miles has an average slope of 4J inches per mile. The Oka from its mouth to Kolomna is 537 miles long, with an average slope of^3f inches per mile. The Muskova, from Moscow to Kolomna, 1104 miles long, has an average slope of 5| inches per mile. From Moscow to the Caspian Sea the combined waterway of the Moskva, Oka, and Volga, 2,122 miles long, has the re- markable low average slope of 2f inches per mile. The Vistula, 655 miles long, has a mean slope of 1.10 feet per mile. The Danube, from Danausechingen to its mouth, is 1,710 miles long, and its average slope is 16 inches per mile. The Seine for the 3484 miles of its navigable course has an average fall of 8 inches per mile. 1216 Extract, — Columbia and Snake R.— Continued, The Elime, from Lake Constance to its mouth is 435 miles long and has an average slope of 2 feet 11 inches per mile. The Ehone, from Lake Geneva to its month is 327-J miles long, and has an average slope of 3 feet 94 inches per mile. In both of these latter rivers the greater portion of the fall is in their upper courses. Some five to six million dollars have been expended in regularizing the Ehone, with very unsatisfactory results. The existing project for improving the Upper Columbia and Snake, made in 1877, contemplates the removal of rocky reefs and rock boulders, and scraping gravel bars, to secure a low-water channel depth of 54 feet in the Columbia and 44 feet in the Snake as far as Lewiston. It is questionable whether the proposed channel can be secured at every point by the means adopted. Past experience indicates that it can not. From Celilo to Wallula the river is navigable all the year around, as far as depth of water is concerned, for boats draw- ing 31 to 4 feet. From Eiparia to Lewiston the Snake is navigable all the year, as far as depth of water is concerned, for boats draw- ing 2 feet. There is much time when boats drawing more than 2 feet would have great difficulty in getting up over the bars, although they could come down drawing somewhat more. The intermediate stretch from Wallula to the mouth of the Snake and up the Snake to Eiparia is the worst part of the river. Over this stretch boats drawing 2 feet can only pass, as a general thing, about four months of the year, from April 1 to August 1. During the remainder of the year the stretch of river is practically unnavigable for boats drawing 2 feet. During periods of high water much greater draft can be carried over all portion of the rivers. It is unfortunate, however, that the periods of high water occur in the spring and summer, when the crops are growing, and the periods of low water in the fall and winter, after the crops are harvested and their moving to market is re- quired. The result of the work which has been done on the river combined with other causes, has been during the past 10 or 12 years to lower the river at governing points about 14 feet. There is just about the same depth of water at low water over many rapids, etc., as there was 10 to 12 years ago, but the surface is lowered about 14 feet on the gauges used by the steamboat men. This is due to the natural wearing away of the bottom of the river, io the work done by the gov- ernment, and perhaps to other causes.” 1217 4202 Thereupon counsel for the defendant offered and read in evidence the deposition of William S. Burt, a witness for the defendant. (For rulings on same see abstract of depositions supra, p. 569.) Thereupon counsel for the defendant, offered and read in evi- dence the deposition of David Layton, a witness for the defend- ant. (For rulings on same see abstracts of deposition supra, p. 575.) Isaac N. Mason, a witness for the defendant, testified as follows : Direct Examination. 4203 My name is Isaac N. Mason. I am in my 78th year. My home is in St. Louis, Missouri, where I have lived going on forty-six years. My occupation is that of steamboating, which I began on the Monongahela Eiver in 1846. I commenced as sec- ond clerk on the steamer Consul, and then was first clerk up 4204 to 1850 and in 1850 I took charge of a boat running from Pittsburg to Cincinnati and Louisville and then I com- menced boating from Pittsburg to St. Louis, run in the Pittsburg and St. Louis trade for several years, then I steamboated from St. Louis to St. Paul several years, one year on the Missouri Elver. Then I was freight agent for the Northern Line to St. Paul for seven years, then I got into politics as Marshal, Sheriff, and City Auditor at St. Louis. After 12 years I went back to the river and was President of the Anchor Line running from St. Louis to New Orleans for over ten years. That was a line com- posed of nine large steamers. In the last employment I did not have to have captain’s papers, but had them before that time. I never held a pilot’s license, but have piloted. I have navigated the falls in the Ohio Elver, the Des Moines and Eock Island Eapids on the Mississippi, and the Missouri Eiver from St. 4205 Louis to Council Bluffs. Since I ceased to run actively on the river I have kept in touch with river conditions, and have been interested in the problem of deep water communica- tion on the rivers for forty odd years. For the last five years I have been one of the vice-presidents of the Upper Mississippi 1218 Maso n, — D i red E xa m. — C o n tinued. Association, an association interested in that matter, and have givn time and study to the problem of deep waterway navigation on the river. In 1892 I was president of the Merchants’ Ex- change and held an official position on the Board of Trade of St. Louis. 1206 I have seen the Desplaines Eiver, I went down it five weeks ago and I was down to-day (June 4, 1908), from Joliet to the mouth of the river, — where the coffer-dam is being built. Seeing the river at its stage on both visits, I discovered here and there there were pools of water, the water was slack and then between the pools there was rapid current, indicating that the bottom of the river was rockv, uneven; the current of the water always shows the condition to a certain extent, of the bot- tom of the river. 4207 Q. Will you state from your observation whether or not in your opinion the Desplaines Hiver from Joliet to its mouth, is a navigable stream? Counsel for Complainant. I object. The Court. Overruled. (Exception.) A. The Desplaines Kiver is not navigable and could not be made navigable unless it was slack watered with locks and dams. It would not be navigable for any character of boat used in com- merce that I have ever been acquainted with in river navigation unless it was improved with locks and dams. C ross-Examination. 4208 I came up from St. Louis on the Chicago & Alton road, got off at Joliet this morning, drove in a buggy to the site of the dam, and back six or seven miles to Minooka, where I took a train for Chicago. We drove 25 or 30 miles. I had a good view of the Desplaines practically all the way down, except that here and there were forest trees that hid the view. We went through a little village, I do not know whether it was Chaii- nahon or not, and did not cross the river until we came 4213 back. When we landed at the moutli of the river we were on the right hand side of the cotfer-dam, that is, on the same side of the Desplaines Eiver as that portion of the coffer- 1219 dam that is being built, — next to the canal. In coming down we drove along the towpath of the canal for several miles, and forded a river just before we took that towpath, but I do not know what river it was. The first four years of my experience on rivers was running from Pittsburg to Brownsville, sixty miles up the Monongahela River. I was first and second clerk, and had nothing to do 4214 with navigating the boat. After that I was second clerk, clerk, and captain on the Ohio River from Pittsburg to Nashville, Tennessee. The service which I rendered then was not the navigating part of the boat, but the business part. I used to pilot once in a while, sometimes for two or three hours, for exercise, but have never had a pilot’s license. 4216 After that, I was general freight agent of the Northern Line, running from St. Louis to St. Paul. I had an office on a wharf boat, but had nothing to do with the navigation of the boats. That service lasted over nine years. After that I way city auditor, sheriff, and city and county marshal at St. Louis. In 1885 I ^ent back to the river and was president of the Anchor Line for over ten years. I had charge of the business end of the work, did nothing with the actual navigation. I have had experience as a master, — during the war my boat was in the Government service with General Grant at Vicksburg, and while there they took my boat and loaded her with ordnance and let my pilots go, and when I was released I could only get one pilot and stood watch from Youngs Point to Cincinnati. I consider myself a thoroughly practical steamboat man. The falls in the Ohio River have a drop of about thirty 4220 feet in low water, in a distance of less than two miles. When I was in the St. Louis and St. Paul trade in 1857, 1858, 1859 and 1860, I was commanding the boat. I had two pilots, and 4224 my business was the business end of the matter. My boat ran up and down the rapids between Rock Island and Mo- line. At the Rock Island Rapids, the fall is about 18 feet in about 18 miles, so I have been toTB. I only know from hearsay. The current in the Rock Island Rapids varies. It varies very much in 18 miles; part of it is ten or eleven miles an hour and some 1220 Mason, — Cross-Exam. — Continued. of it is probably only two or three miles. It is in pools, the 4225 rapids is in pools. My boats passed right up and down through that. The greatest slope I have ever passed over in a boat is the falls, at Louisville, Kentucky, in the Ohio Kiver, where there was a fall of about 30 feet in two miles. The boats passed up and down there only in high water, the current in high water would average from six to eight miles an hour. At high water the falls is covered so you couldn’t observe the falls at all. I do not know what the slope in the Desplaines River is, nor the speed of the current, but should guess it about 7 to 4226 10 miles an hour. There is places in the Desplaines River where the current is more rapid than it is on the Mississippi River, only for a short distance. I only judge from experience in looking at the Desplaines this morning. It is 43 years since I quit running boats over these rajiids in the Mississippi, but I have been over the rapids since that time, and have studied the matter somewhat in regard to improving the channel of the 4228 Upper Mississippi, especially on the rapids, — the Rock Island Rapids. My especial interest was to have the Upper Mississippi improved, the rapids in low water are very dangerous to navigate, and the Government has improved them in such a way they have lessened the danger over 100 per cent. The thing which the association with which I have been identified has been asking, is to make deeper water in the upper Mississippi, and what the Government has been doing is to build wing dams up along Lake Petin, and away up towards St. Paul, and narrow and deepen the stream. 4229 There are no locks and dams in the Cumberland, the Tennesee or the Allegheny. I have not been on the Cum- berland River since 1863, I never went up the Tennessee. The only concern I have had in those rivers is to assist the men who are steamboating there to get improvements. They build 4231 wing dams there to narrow and deepen the channel. There are no locks and dams on the Allegheny. I never was up that river, only to cross it at Pittsburg about 40 years ago. Re-direct Examination. 4233 I got to Joliet this morning about half past five. When I went down the Desplaines River the first time, we crossed 1221 four bridges. In high water in tlie Ohio River, the fall is ol)^ literated, so you can not see any fall in the river. The slope varies with the variation of the amount of water. When I speak of the slope in a river, I mean when there is a boating stage 4234 stage of water, as in the Rock Island falls, when there is 6 or 7 feet in the channel. The ability to navigate slopes depends upon the depth of the slopes. A captain of a steam- boat has full charge of all the business connected with his boat — I considered myself that I understood the duties of a master of a steamboat thoroughly — when I was master of a boat, the pilots were under my direction and command as captain. My guesses as to the rapidity of the Desplaines are my estimates of the rap- idity. Re-cross Excunination. 4240 The pilot is under the captain’s control. If the captain said to go a certain way, the pilot would be expected to go the way the captain told him,, although that might not be the channel. Thereupon counsel for the defendant offered and read in evi- dence the deposition of Adam Comstock, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 586.) Thereupon counsel for the defendant offered and read in evi- dence the deposition of James G. Keen, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 593.) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Enos Field, a witness for the defendant. (For rulings on same see abstracts of depositions supra, p. 598.) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Urias Bowers, a witness for the defend- ant. 1222 (For rulings on same see abstracts of depositions supra, p. 601 .) Thereupon counsellor the defendant offered and read in evi- dence the deposition of Oliver S. Chamberlain, a witness for the defendant. (For rulings on same see abstracts of depositions supra, p. 606 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Seneca Hammond, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 607 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Peter O’Brien, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p 610 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of Franklin Collins, a mtness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 613 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of John McCowan, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 617 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of E. W. Kilmar, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. 625 .) Thereupon counsel for the defendant offered and read in evi- dence the deposition of William Whigam, a witness for the de- fendant. (For rulings on same see abstracts of depositions supra, p. :ni.) 4242 Counsel for Defendant. Here is another deposition of John McGowan. This deposition was taken to rehut tlie testimony of Mr. Stevens that Mr. Jessup told him that lie had brought lumber around from the Kankakee River to build a house. This man testifies where the lumber came from. Of course if your Honor rules out the other, this is not competent here. The Court. I have got through this hatch that you have marked, and I have ruled on this basis (for said rulings referred to see ab- stracts of depositions) ; that where the witness purports to give the general reputation of events in the neighhorhoodj that is ad- mitted; where he purports to give specific conversations of specific events, it is not admitted. In some instances the question is all right and asks him as to the current reputation in the neighbor- hood as to navigability and that sort of thing. The answer in some cases is a little doubtful. In other cases it is clear that he is giving simply what some individual told him about some specific act that happened to that individual, of which he knew, or he is giving a statement of some individual which he gathered that the individual believed to be current reputation. Where that is all that he has given I have cut that out. In other words, where he is simply repeating that his father told him that the current reputation in his father’s time was so and so, I have struck that out. Where he says that he knows the current reputation to be so and so, then I left it in. That has been the general basis. I may have overlooked some instances where at the end of the whole testimony Mr. Munroe said, move to strike out all the answers because they are not of the right kind.” It is possible that something of that kind has been overlooked. Ruling of Court on Defendant's Motion to Strike Out Evidence. Whereupon the court ruled on the objections to certain parts of certain depositions as follows: In the deposition of Harlow H. Spoor, the objection to the wit- ness’ general statement of reputation in the neighborhood over- ruled and statement left in. 1224 Biding on Deft.’s Motion to Strike out Evid. — Continued. (For this statement see Vol. 1, Complainant’s Depositions, p. 49; Trans., p. 918; Abst., p. 418.) 4244 In the same deposition the statement, ‘At was the current report by men I believed to be truthful, and had no interest in it,” was left in. (See page 51, Vol. 1, Complainant’s Deposi- tions, Trans., p. 919; Abst., p. 419.) In the deposition of Urias Bowers the following was stricken out : “Q. Do you remember where they came from! A. Well, we heard that they came from Chicago. Q. Do you remember where they were going to! A. Going to California. Q. Going down to New Orleans and then to California! A. That is what the report was. A lot of us boys followed them down to the dam when they went over, for curiosity.” The Court. “He states clearly that it was simply the report that they were going; that they came from Chicago and were going to California.” (Said matter stricken out is on page 63, Vol. 1, Complainant’s Depositions, Trans., p. 931; Abst., p. 421.) And also in the same deposition the following: 4245 “Q. Did you ever know or hear what the men were do- ing that were down near the aqueduct at the time the boat capsized and drowned some!” The Court. This is cross-examination, and as the original was in, why, the cross is to that, and it stands. (Said statement occurs on page 65, Vol. 1, Complainant’s Dep- ositions, Trans., p. 933; Abst., p. 422.) In the deposition of Wightman the following was stricken out: “Q. I will ask you to state whether you are acquainted with the current report and local reputation as to the use of the river in the early days for the rafting of timber down the river from Lockport! A. I heard my mother tell sev- eral times about the rafts of logs going down the river in the early days. That was before I was old enough to remember anything, and the men having little shacks for houses on the raft, and they done the cooking in the house, and they stopped, I think, a day or two right there at my grandfather’s place; I don’t know how long.” The Court. There is no objection. 1225 4245 Whereupon, after colloquy of counsel as to the right of tlie defendant to raise an objection as to the substance at the time of reading the deposition where there had been no ob- jection at the time of taking the deposition, the court overruled the objection of complainant, allowed the objection of the 4248 defendant, and struck out the testimony aboye referred to. (Said passage referred to occurs on page 88, Vol. 1, Com- plainant’s Depositions, Trans., p. 954; Abst., p. 426.) In the deposition of George AY. Raymond the following testi- mony was stricken out: ‘‘Q. Did you eyer conyerse with him about the local rep- utation of the state of the water in the riyer? A. Y^es, sir. Q. Did you eyer haye him compare the local reputation of former high waters known to him with that of 1857! A. Yes, sir. Q. What did he say about it! A. AYlien I went oyer to McMillan’s after my horses and wagon, and so forth, I told Shabbona by motions and talk that I wanted to get crossed 4249 oyer. He called a couple of squaws, and they motioned to me, and went went up the riyer a ways, and they had what we call a canoe, and I seated myself nicely down in the bottom and they paddled me across, and I gaye them a quarter of a dollar. I used to be yery friendly with the old chief, and I gaye him a part of a sack of that flour that I got oyer ou the scow.” The Court. Then begins the objectionable part: ‘Wnd I asked him in regard to the water at that time, and he made motion, and he showed me — he put his cane up this way (indicating) ^So; there, so, up.’ In the Indian way. He would understand yery well what you said to him, and he possessed that peculiar Indian way, a good deal of sign language as well as words. Q. And how did the height that he indicated compare with the leyel of 1857! A. Yluch higher. Q. How much higher in feet would you say! A. AYell, I should say four feet. Q. Go on. Did he eyer talk with you about the local rep- utation of the use of the stream in the early days by the set- tlers and explorers! A. He told me one time — motioning that he was a small boy, so (indicating), about so.” The Court. That will all go out. It is simply a recital of a conyersation. 1226 Riding on Deftds Motion to Strike out Evid.— Continued. (Said passage referred to occurs on page 133 of said deposition, Trans., pp. 998-9; Abst., p. 434.) And also in the cross-examination of the same witness the fol- lowing passage was stricken out on the ground that it was cross- examination of the excluded part : ‘‘Q. In your conversation with this old Indian did you gather from his statements to you that the white man never went north of your farm, up the river? A. Never went up stream.” (Said passage occurs on page 135 of said deposition, Trans., p. 999; Abst., pp. 434-5.) 4250 In the deposition of Obediah Hicks the following state- ment was allowed to stand: ‘H asked you if you are acquainted with its local reputa- tion, from what you have been informed by others.” (Said passage occurs on page 140 of said deposition, Trans., p. 1005 ; Abst., p. 436.) In the same deposition the following passage was excluded, be- ginning on page 142, as follows: ‘‘Did you ever hear of anybody taking any grain or mer- chandise from Joliet to Chicago by way of the Desplaines River? A. No, no, not till recently. I haven’t heard of it. Q. Who did you ever hear it from recently? A. The pa- pers, and some fellows that had been talking about the evi- dence they were going to give and so on. Q. Who ever told you that they knew of grain being taken from Joliet to Chicago by way of the Desplaines River? A. I could not say that, but I understood there was a cargo loaded in Kankakee and brought down to Treat’s Island, a cargo of grain and they wrecked the boat there and lost the grain.” — and so on to the bottom of page 143. (Trans., pp. 1007-8; Abst., p. 437.) Also in the same deposition the following statement: “I have heard that trappers used to be up around here. I have heard others state that a good many years ago.” was allowed to stand. (Said passage occurs in said deposition at page 144, Trans., ]). 1009; Abst., p. 438.) 1227 4251 And also in the re-direct examination of the same wit- ness the following was allowed to stand: ‘‘The local reputation as you heard it, and you were told about these trappers with the batteaux was that they were sent out by the American Fur Company/’ (Said passage occurs in said deposition, page 148, Trans., p. 1013 ; Abst., p. 439.) In the deposition of Francis Belz the following: “Did you know of some large boats coming down into the lower basin at Joliet and being unloaded and the goods hauled down below the dams by wagons and then being put onto the boats again? iV. No, but Mr. Lappin was an old fisherman and he used to fish down along there, and his boy and I was great friends, and he told me—” The Court. What he told him then goes out down to the end of the page and down to the last question, “AVhere is Mr. Lap- pin now? A. He is dead.” (Said passage occurs on page 156 of said deposition, Trans., p. 1021-2; Abst., p. 441.) 4352 In the deposition of George A. Parrent the affidavit of said witness, which was sworn to prior to the trial, and the cross-examination relating to the same was allowed to stand. (Said passages referred to occur in said deposition on pages 225-6-7-8, Trans, pp. 1090-4; Abst., pp. 452-4.) 4256 In the deposition of Edward D. Brockway the following passage was excluded: “Q. Did your father ever tell you about using the river himself before you were born? A. Oh, jes. Q. What did your father tell you about his making use of the river before you were born.” The Court. From there on down through the next page the whole thing goes out. (Said passage occurs in said deposition on pages 251-2, Trans., p. 1117; Abst., p. 458.) And in the same deposition the following: “Q. What was the condition of the water at the edge there, was it shallow or deep, did it go oft sudden? A. Well, it was quite deep there; made a-purpose. 1228 Biding on Deft/s Motion to Strike out Evid. — Continued. Q. Made a-purpose for what! A. For unloading stuff. 4257 Q. Onto the boats from the road! A. Yes. Said passage was allowed to stand. (Said passage occurs on page 254 of said deposition, Trans., p. 1119; Abst., p. 459.) And also in the cross-examination of the same witness the fol- lowing passage : They had the road there for to load the stuff on, to freight it down to the quarry. That is what the road is for. Q. To freight it to the quarry out to Miller’s; that is on Lake Joliet, is it! A. Yes, sir. Q. And the road leads down to the water’s edge at Lake Joliet, and Miller’s is from Lake Joliet, two or three miles down, north of it, in that wide portion of the river, and they used a scow boat to convey quarry stone from Miller’s! A. No, they freighted material down to that quarry on the end of Mt. Flathead, right where the Rock Run empties into the river.” And also the following passage : 4258 ‘‘Q. Did you ever see any boat on the Desplaines River carrying any merchandise or freight! A. No. Q. You never saw it yourself, nor never heard of any- body doing it, did you! A. Nothing only this freighting this stuff down to the quarry. Q. How do you know that! A. From what I heard. My folks about sending the stuff down. Q. Did he do it more than one season! A. No, only one year. Q. Only one year, and to get his supplies in to open up his quarry; is that right! A. Yes, that’s it. Q. And after he got his supplies in, that was the end of taking any material down! A. Yes. Q. I suppose he took an engine or a boiler, did he! A. No, he just freighted derricks and such things down there to save hauling them. Q. And after he got the stuff in there, that ended any- thing you ever knew of any use of any portion of the Des- plaines River, that is all! A. That’s all.” Counsel for Defendant. That is all so mixed up with the other, in view of the fact that we had a witness on that point, I think it would be dangerous to strike it out, because it is all m'xed up. The Court. Very well, it stands, then. (Said passage occurs on page 256, 8 of said deposition, Trans., ]>p. 1121-2-3; Abst., p. 459.) 1229 In the deposition of Eliza Jones, beginning on page 269, the following passage: 4259 ‘‘Q. I will ask you to state, Mrs. Jones, whether you have heard from your father and others the current reputation of the history of the early days on the Desplaines River, in Jie matter of shipping or travelling upon itr^ The Court. The question was all right, but that is an instance where the answer is not as good as the question. “Well, I have heard my father say many times that sup- plies were brought up from the south up as far as Lockport, or up to here. When my father came — Q. How! A. Up the river. I donT know what they were brought on. When my father came here there was no canal. There was no railroad. Q. Yes. And what have you heard similarly, as to the history of provisions or merchandise of any kind being brought down the river from Chicago! A. Well, there is only one thing that I remember x^auticularlv of his speaking of often, and that was that some man cornered coarse salt in Chicago. Q. Yes! A. And that all the way they were able to get it was down the river, and it cost them ten dollars a barrel. I have heard him say that many times. Q. Bringing it down the river! A. That is the way I understood him. There was no other way to get it unless they went by wagons. 4260 Q. This was long before the time when you went fishing in 1859 or 1860! A. Sure. Q. That your father used to tell you this! A. Yes. And then afterwards, my father and another old neighbor, Mr. Frederick Collins, whom Mr. Stevens, if he is here, remem- bers, they lived across the street; and the two old gentle- men had nothing particularly to do, and they used to sit and talk old times ; and these things 1 have heard over and over again. Q. Hid he mention the name of the man who cornered the salt market in Chicago! A. Well, if he did I do not recol- lect it. Q. You do not remember who it was! A. No, sir. Q. And you say they brought the salt down from Chicago in barrels! A. Why, I suppose so; because he said it was ten dollars a barrel. The neighbors had to divide up a barrel, it was so expensive.’’ The Court. I think that is hearsay and it goes out, even if Mr. Fred Collins told her father, and it goes out. The cross- examination on the next page, 271, goes out with it, beginning: 1230 Ruling on Deft/s Motion to Strike out Evid. — Continued. he tell you that he ever brought any salt down the Des- plaines Elver to Chicago,” down to the end of that page and the first answer on the next page: — ^‘He said it came down the river. There was no other way.” 4261 When Mr. Starr asked you how the supplies got to Joliet from the south, you answered there was no other way than the river, didn’t you! A. Why, no other way except teams. Q. Do you know anybody that brought supplies from the south by river! A. Only what I heard my father say. Of course, I don’t know it.” The Court. That may go out, all that I have read, down to the end of page 274 and down to the end of the cross-examina- tion. (Said passages stricken out occur on pages 269-274 of said dep- osition, Trans., pp. 1134-40; Abst., pp. 462-3.) In the deposition of Samuel W. Jones the following was stricken out: I will ask you to state, Mr. Jones, if you ever heard the current reputation as to the history of the early years of the river, from Mr. Paddock, and other old settlers! A. Yes, sir, I have heard some things said, by him and by a neighbor that lived across the, way from him; an early settler. Q. Just tell the substance of what it was you heard them say, as to the history of the early use of the river.” The Court. Counsel objects to the suggestion, and the wit- ness then goes on to tell what he heard them say. That may go out, also pages 278 and 279, down to the end of the 4262 examination, through the marked passage, ‘A¥hat did Mr. Paddock tell you!” (Said matter stricken out appears on pages 277, 278 and 279 of said deposition, Trans., pp. 1142-3-4; Abst., p. 463.) In the deposition of Mr. King, the following passage: I wonder, Mr. King, whether you ever have heard from the early settlers the current reputation as it was when you were a boy and very young man, as to the history of the early use of the river ; back in the period before there was a canal. Have you ever heard them talk about that!” down to — know them by sight” — was allowed to stand. (Said passage appears in said deposition, page 290, Trans., p. 1155; Abst., p. 465.) 1231 In the deposition of John W. Taylor the part beginning with the expression^ — ^‘Do you know of the general talk or reputation about nav- igability/’ etc. — was allowed to stand. (Said passage occurs in said deposition, page 129, Trans., p. 1246; Abst., pp. 488-9.) And also in the cross-examination the following was allowed to stand : ‘^When the people treated or discussed the river as a nav- igable river, do you know whether or not they had in mind that Act of the Legislature which declared the river navi- gable!”' (Said passage occurs in said deposition at ])age 434, Trans., p. 1251; Abst., p. 490.) 4263 In the deposition of George W. Eeed the following passage was stricken out. ‘‘Q. Do you know anything about some wheat that was being carried to market on the Desplaines Kiver getting wet as it was being carried up the river on a boat there below Joliet at any time while you were living at Reed’s Grove! (Objected to, because the information sought is not within the witness’s own knowledge.) A. I remember one time when I was living there.” Also on the same page the following x)assage: ^‘That boat was taking wheat u|:> the river, was it!” was stricken out. (Said x)assages occur in said dex)osition on page 13, Trans., p. 225; Abst., }). 158.) 4264 In the same deposition, on the cross-examination, the fol- lowing passage: Now, this boat that contained the grain that you speak of, what happened to that boat that caused the grain to get wet! A. I did not learn. The only thing I learned about it was that it got wet, and that the man who had it was selling it out because he could not take it to the market.” — down to the answer, ^‘I don’t know that I did,” — was stricken out, as to how it got wet, but that it did get wet may stand, because witness said in his direct that he saw the wet wdieat. 1232 Ruling on Deft.’s Motion to Strike out Evict. — Continued. (Said passage occurs in said deposition on page 15, Trans., p. 227 ; Abst., p. 159.) And also in the same deposition the passage : Whereabouts was this boat that contained the wet wheat that was sold with reference to that point — was it above or below? A. I could not tell you. I did not see the boat, it was down on the river some place where the wheat got wet.” was stricken out. (Said passage occurs in said deposition on page 17, Trans., p. 230; Abst., p. 159.) 4265 Whereupon counsel for complainant called attention of the court to the fact that the defendant at the trial of said cause had omitted to read the cross-examination and the fact that the witness learned about this wheat getting wet from his brother was brought out on cross-examination, and that therefore the direct examination should stand. 4266 (Thereupon the court overruled the objection of counsel for complainant.) In the deposition of Heydecker, the specific part relating to his brothers-in-law was stricken out, on page 9 and on page 30, beginning with the question — 4267 ^^I think you testified that you heard about somebody that had said that they came up the river in a canoe; who was that?”— down to the question — ‘^Are you aware of the fact that the Desplaines River be- low Lockport was at that time full of dams, seven or eight dams in it?” That stands. The answer was : I don’t know anything about it at that time; T was never down there at that time. Q. Did you hear him say how he got through the dams? A. There wasn’t any dams tliere when he came up, that is, I never heard him tell of coming over. I have heard trap- pers tell of going through the dams.” The above answers were stricken out as not responsive. (Said passages occur in said deposition on page 9 and x)age 30, Trans., pp. 371, 395 and 397; Abst., ]q>. 206 and 215-16.) 1233 And' also in the same deposition the following passage: ^‘Did you ever hear him say anything about the rapids in the river being such that they couldn’t go up? A. I have 4268 heard him say it was difficult to go up through part of it on account of the rocks,” &c. — down to the end of the cross-examination on page 33, was stricken out. (Said passage occurs in said deposition on pages 32, 33, Trans., pp. 397-8; Abst., pp. 216.) And also in the re-direct examination the following passage was stricken out: ^‘Did you understand from this description that these dif- ferent families, that that was tlie method by which they jour- neyed into the country for their permanent establishment here? A. These two did, and went back down the river trap- ping several seasons after that; came down in the fall and went back in the spring. Q. Those three families you have spoken of, according to the descriptions which you received, were not on any pleasure or trapping expedition ; they were coming here to locate? A. Those three families I speak of came here to locate and did locate. Q. And brought all their liousehold property, did they? A. Well, I don’t think Emory did; I think Emory came through, he came out here, he was an uncle of mine, came 4269 out here first and stayed one summer and then he came back to York State, where he came from, where his family lived, and his wife, and they came through on a prairie schooner, I think they came through in a prairie schooner.” (Said passage occurs in said deposition on page 33, Trans., pp. 398-9; Abst., p. 216.) The re-cross examination of said witness on page 34, Trans., pp. 399-400; Abst., p. 217, was also stricken out. In the deposition of Frank Paddock the following passage: ‘‘Q. I will ask you to state wdiether you ever heard from your father and others the current reputation and common talk of the history of the early days as to the use of the Des- plaines Eiver and the travel upon it, and using it for ship- ping. ’ ’ — and so on, being the whole of page 314 and the first line on page 315, was stricken out. (Trans., p. 1179; Abst., 469.) 1234 Rilling on Deft/s Motion to Strike out Evid. — Continued. 4270 In the cross-examination of the same witness the follow- ing passage: ‘‘And when your father told yon about getting supplies in here from the south and from Chicago by boat in the early days, did he not refer to getting those supplies in on the Illi- nois and Michigan canal from the south and from above — down to the end of what his father told him, was stricken out. (Said passage occurs in said deposition on pages 316-318, Trans., pp. 1181-4; Abst., pp. 469.) 4271 In the deposition of W. W. Stevens the following passage was allowed to stand: “Q. Are you acquainted, Mr. Stevens, with the current reputation and common report as to the early history of the use of the Desplaines Eiver, by the early settlers and ex- plorers, as it existed when you came here; I mean as that reputation existed! A. Yes, sir, I think so. I inquired a great deal; was on the river a great deal and talked with a great many of the early settlers in regard to the use that was made of the river before the opening of the canal.’’ (Said passage occurs in said deposition on page 338, Trans., p. 875; Ahst., pp. 407.) In the same deposition in reference to the following passage: “The current reputation was, up to the time of the 4272 opening of the Illinois and Michigan Canal, that it was used more or less for transportation ; certain portions of it. Q. Go on and state the nature and kind of that use, as you learned it from these sources! A. Well, of course I know nothing except what I heard from others, you know. Q. I understand. A. I heard of the lower part of the river being used for carrying lumber. Parties themselves told me that they brought lumber up — brought it down the Kankakee and up to the Desplaines to the mouth of the Du- Page, and then up the DuPage to near their place there at Channahon.”— The court ruled that it might stand, but the specific instance on page 340 about what Jessup told him about bringing 4273 lumber down should go out. (Said passage occurs on page 340, Trans., p. 877; Ahst., p. 408.) Pages 341 and 342, Trans., pp. 378-9; Ahst., pp. 408, were also ruled out. 1235 Also on page 343, the passage : ^‘Was there a grist mill at Wilmington at that time? A. Yes, sir, so I was informed by history, that is, that is the only mill there is anywhere around there. Q. You may state whether or not these gentlemen who narrated the bringing of the lumber down, said anything in regard to hauling grain to the mill.” The Court. That answer down to the bottom, that is all what Jessups told him. That is all out. down to the question — ‘‘Where is Mr. Edward H. Jessup now? A. They are both dead.” — was all stricken out. (Trans., pp. 880-1; Abst., pp. 409.) Also on page 344 the passage: “Did you ever hear him talk about the subject of using the river? A. Yes, sir.” was stricken out. (Trans., p. 881; Abst., p. 409.) 4274 Pages 345, 346 and first answer on page 347 were also stricken out. (Trans., pp. 882-3-4; Abst., pp. 409-10.) In the same deposition the following passage: “What was the current reputation as to the early use of that? A. That it had been used to haul stone from Swalm’s quarry down to the river there, and load it onto boats. Q. Loaded onto what? A. Loaded onto boats. Q. For what? A. That I don’t know. I may have heard at that time, but I don’t recollect now. That it was loaded onto boats and taken down the river, and that is all I know about it.” — was allowed to stand. (Said passage occurs in said deposition on page 348, Trans., p. 885; Abst., p. 410.) In the same deposition the passage : “When did Mr. Edward Jessup have a conversation with you in regard to bringing lumber from Wilmington to Chan- nahon?” was stricken out. (Said passage occurs in said deposition, page 360, Trans., p. 897 ; Abst., p. 414.) 1236 Ruling on Deft/s Motion to Strike out Evid. — Continued. In the same deposition the following passage: 4275 The testimony you gave this morning was as you recollect it the substance of what Mr. Jessup told you in the fall or winter of 1856? A. The two Jessups, and I recollect of one or two other parties there going with them and carry- ing grain to get ground, and they would help navigate the boat to pay their passage.” was stricken out. (Said passage occurs in said deposition on page 361, Trans., p. 898; Abst., p. 415.) And on page 362 of said deposition the following passage: ‘^Did you on that occasion state that that was the only time that Mr. Jessup told you that he had ever used the Kankakee or Desplaines Kiver? A. No, sir, because there was two Jessups, and I recollect of staying at Mr. John S. Jessup’s house several years afterwards, and in the evening he told the story of his early life there in Channahon and how he spent his time, and about liis bringing lumber from Wilming- ton down the Kankakee. That is John S. Jessup. Edward Jessup was a younger brother. Q. What did he say about bringing lumber from Wilming- ton to Channahon? Not what you understand but what did he say? A. Oh, I don’t recollect. It is a good many years 4276 ago, and I don’t recollect exactly what he said. His father’s name was Isaac Jessup, and after he came there with his father they hadn’t much of anything else to do, as I remem- ber it, and they built a small flat boat and used it for that purpose.” was stricken out. (Trans., p. 899; Abst., p. 415.) On objection by counsel for complainant the residue of pages 361 and 362 was also stricken out. (Trans., pp. 898-9; Abst., pp. 415.) 4277 In the same deposition, on page 363, the following passage was stricken out : ‘AVhat date do you say it was that Mr. Jessup went to Wilmington? A. ’34 and ’35. Q. What was the reason for their going to Wilmington, to get their corn ground and get lumber? A. They didn’t get any corn ground, as I understood, except when they car- ried it for other parties. I don’t know; they might have carried some for themselves, but other parties would go with them and they would help navigate the boat and they would bring their grain. 1237 Q. Who went with them? A. I recollect Mr. Isaac Scher- merhorn; I boarded with him. He told me about going to Wilmington and going through the cut-off.” (Trans., p. 900; Abst., p. 415.) On page 364 the following passage : ^‘They never told you they brought their boat down the Kankakee Eiver and up the Hesplaines Eiver? A. Oh, yes, when the water was low in the cut-off. Q. They told you that, did they? A. Oh, yes. Q. You said in your examination this morning that the reason they went to Wilmington to get their grain and their lumber was there was no other mill anywheres near there? 4278 A. Yes. Q. Is it not a fact that in 1834 a saw mill and grist mill was built at Treat’s Island, within two miles of those peo- ple’s houses? A. No, sir. The saw mill was commenced, I think, in 1836, and finished in 1837.” was all stricken out, including the first answer on page 365, on the ground that the direct examination in reference to the same mat- ter had been stricken out. (Trans., p. 901; Ahst., p. 416.) In the same deposition, page 366, in reference to the following passage: 4279 ^AYho was it brought the whiskey down the Hesplaines* Eiver? And have people told you that they would come from Chicago at any time of the year? A. When the water was high. Q. Who told you that? A. Oh, I couldn’t remember now. Q. Can you remember any one person? A. Oh, no, I know it was a general conversation, that there were several months in each year it was impossible to go from here to Chi- cago with a team.” The CouET. I think that is general reputation. I have marked it out, and that part may stand, not as to what Fish told him about whiskey, but the balance of it. (Trans., pp. 903-4; Ahst., p. 416.) Also the following passage: ^‘All you want to be understood as saying in regard to Air. Fish is that on one occasion he got some whiskey down there? A. I did not say any such thing; on one occasion I asked him how he got his whiskey down there when the roads were bad, and he said they brought it down on boats.” 1238 Ruling on Deft/s Motion to Strike out Evid. — Continued, The Court. That goes out, and the continuation of that 4280 at the top of page 368, all about Fish goes out down to the question beginning: ‘^Did you ever see the manuscript of Mr. Woodruff’s before it was printed!” (Trans., pp. 904-5; Abst., p. 416.) In the same deposition the following passage was allowed to stand : stated it as a fact, and I should have stated it as in- formation and belief. Q. You stated under oath at that time that: ‘Affiant further says that he knows of his personal knowledge,’ etc.” (Said passage occurs in said deposition at page 373, Trans., p. 910; Abst., p. 417.) Thereupon the following passage was stricken out: “Who described to you the size of the boats that plied on this river at any time; if you were describing boats be- tween 35 and 55! A. Mackinac boat, I have seen a great many of them. Q. I asked you who ever described to you the size! A. I don’t recollect. Mr. Fish might have told me the size of them. He told me they brought down three to four barrels of whiskey — Q. He said it was brought down! A. Was brought down for him. Q. Who brought it down! A. I don’t know, I didn’t care about that. Q. But you were interested in knowing how they got it down! A. I was interested in knowing how they got so much whiskey down there.” (Said passage occurs in said deposition on page 373, Trans., pp. 910-11; Abst., p. 417.) 4281 The court held that Heward’s narrative should stand for what it was worth. 4286 Thereupon counsel for complainant offered and read in evidence the deposition of William Found, a witness for com- plainant. (For rulings on same see abstract of depositions, supra, p. 461). Thereupon counsel for defendant offered and read in evidence the deposition of John K. McGowan, a witness for defendant. 1239 (For rulings on same see abstract of depositions, supra, p. 491.) L. L. Wheeler, a witness for the defendant, testified as follows : B i rect Examina tion . My name is L. L. Wheeler. I am 57 years of age, and 4287 reside at Sterling, Illinois. I graduated from the University of Michigan in 1874, and have been following the j)rofession of civil engineer ever since. I was connected with the survey for the northern and northwestern lakes, under General C. D. Com- stock, for seven years. I was also employed by the Mississippi River Commission in the office at St. Louis, Missouri, for six years, during which time my duties were mainly those of conduct- ing general surveys and preparing data for publication. The 4288 Mississippi River Commission was a commission ordered by Congress, consisting of three officers of the Corps of Engi- neers, one officer of the United States Coast and Geodetic Sur- vey, and three civilian members, having in view the improvement of the navigation of the Mississippi River from the mouth of the Ohio to the Gulf. I had charge of the computing division in the office for a number of years, and prepared the data for the infor- mation of the Commission and also for publication. I was not directly connected with any of the field construction of the Com- mission; I mean by that, with the construction of levees, bank re- vetment, grading of banks, and so on. After leaving the 4289 Commission, I came to Chicago to take charge of the sur- vey for a waterway from the lakes to the Illinois River at LaSalle, and during the fall of 1888, and to the fall of 1890, I was engaged upon that work. I made surveys of the country from Bridgeport to Joliet with some special surveys along the Chicago River; made also detached surveys in the vicinity of Treat’s Island, Sugar Island, Marseilles, Ottawa and other points along the Illi- nois River. The result of my work was published in a report and the maps were also printed, as a volume. That survey was made under the Engineering Department of the United States Army, pursuant to authority of Congress. Major W. L. Marshall was the engineer in charge of this district at that time. I am the L. L. Wheeler referred to in Major Marshall’s report of that survey, I 1240 Wheeler,— Direct Exam. — Continued. was engaged in the work approximately two years. I was assistant engineer, had charge of the field work, and had occasion dur- 4290 ing that survey to make surveys of different parts of the Desplaines Eiver. After finishing that work, in the latter part of 1890, I was put in charge of the location and construction of the Illinois and Mississippi Canal, known locally as the Henne- pin Canal, by Major Mb L. Marshall, who was then in charge of the Engineering District, and that canal is in the Engineer- 4291 ing District of the canal. I have been engaged in that- work ever since, nearly eighteen years. I am still connected with the Hennepin Canal, having in charge the care and operation of the whole canal, under, of course, the officer of the Engineer Corps of the United States Army. The Hennepin Canal leaves the Illinois Eiver near Bureau Junc- tion and runs nearly due west to the Mississippi Eiver at the mouth of Eock Eiver, perhaps three miles below the City of Eock Island. It is supplied with water by a feeder which leaves Eock Island at Sterling, Illinois. The entire length of the canal is 75 miles, the feeder is a little more than 29 miles. The width of the canal prism is approximately eighty feet at the water line, and the depth seven feet. 4292 There have been built a great many miles of earthen em- bankment in that canal. Quite a good many miles are exposed to the action of water on the outside and others are exposed to water action on the inside. The first section that I built was at the lower rapids of Eock Eiver, near Milan, about opposite Milan, Illinois. At that embankment, when the north embankment has high water, Eock Eiver comes against it throughout its length, four and a half miles practically. For 4,500 feet, however, of that distance, the canal was built by parallel embankments in the bed of the river itself, in which the river was against one embankment on the north side and a large creek. Mill Creek, against the south side at the south embankment. Those embankments were built in 1893 and 1894, and are still standing. There are other places along the canal where the high water from the rivers or streams comes up against the outside of the embankment. The main 4293 body of the embankment consists of earth which was brought out in cars and dumped. The outside and inside slopes are 1241 rip-rapped with broken stone, stone as it came from the (|uarry. The width' at the top of the bank was, I believe, twelve feet. The slope of all the banks in the earlier construction was one and one- half horizontal to one vertical, but down in the cross-section — 1 have a typical cross-section, and the outer slope of the north em- bankment is not over two to one horizontal. I could not say to my recollection whether or not that is two horizontal to one vertical. It could not be steeper than one to one-half. The cross-section, marked ‘^Wheeler Exhibit One” (xVtlas, page 3977 ; Trans., p. 6628; Abst., p. 1934) and now introduced in evidence, and which purports to be a cross-section of the Hennepin Canal below the mouth of Mill Creek, opposite Milan, Illinois, a point where the canal is built in the bed of the river, with the embankment on either side, 4294 correctl}^ represents the situation at that point. 4297 Said map was received in evidence. (Objection.) The letters and figures ‘‘H. AV. 135” on the mound on the left on said map means the elevation of the high water in Hock Kiver in reference to Hennepin datum, — 135. The line below that, marked W. 126” represents ordinary low water in Eock Eiver re- ferred to the same datum. The water shown at the left of the left embankment, which appears at the left of -the exhibit, is the water of Eock Eiver; the water between the two embankments repre- sents the water surface here carrying the exact level in that level of the canal. The ‘AC. S. 131” marked on the top line is the base of the slope surface. The other elevation there shown is the bot- tom elevation, the elevation at the lock in the bed of the 4298 stream. The letters S.” mean water surface. The right half of the exhibit “H. AC.” represents high water in Mill Creek, and “L. AC.” represents low water on that side. I would like to qualify my testimony in regard to those two elevations at that point by saying that the slope of the creek is quite steep, and according as you move up or down stream, usu- ally the low and high water elevations will vary. That is typical of that vicinity, however. The high water line of the Eock Eiver comes within three feet of the top of the embanlanent, and the high water line of Mill 1242 Wheeler, — Direct Exam. — Continued. Creek, on the right of the exhibit, is shown as two feet from 4299 the top. Mill Creek is a stream whose greatest area lies mainly in a country of deep slopes. At low water it is prac- tically dry, and at times of heavy rains, it comes out with tor- rential force. The measurements that we made while engaged upon that work show that the maximum flood might be expected of ten thousand cubic feet a second, and- the slopes are so steep in the drainage area that floods of that volume might be expected in from perhaps five to eight hours after the rainfall. Counsel foe Defendant. How wide is that creek between banks t Counsel for Complainant. I object to it, your Honor, as being irrelevant and unimportant. The Court. He may answer. A. The width would vary. Some places it is quite narrow, but I' would say generally from fifty to one hundred feet. In places it overspreads the adjacent country. Counsel for Defendant. What is the size of Eock Eiver at that point, its width and depth! 4300 (Objected to as incompetent; overruled.) A. It is a large stream at this particular point. It is divided into two channels, by islands. The channel on the south side at that point represented by the cross-section, would be perhaps 800 of 900 feet wide, and the channel on the other side perhaps 400 to 500 feet. Counsel for Defendant. What is the usual depth of water in that river at that point! (Objection; overruled.) A. That is situated on rapids, and at times the rapids are en- tirely backed out by high water from the Mississippi so that there is a considerable depth of water there. In times of flood there is con- siderable depth, but in ordinary stages the water is quite shoal, perhaps from one to two feet in that vicinity. In times of 4301 high water, there is perhaps nine or ten feet of water against the bank there. The maximum flood in the Eock Elver at that point I have estimated as 65,000 cubic feet per second. I sup- pose the maximum discharge of the Desplaines Eiver at Joliet is approximately 13,000 to 15,000 cubic feet per second. 1243 The two earthen embankments which were constructed at this point, opposite Milan, Illinois, were constructed of earth excavated immediately above on the south shore of Eock Eiver and the earth consisted of black sticky prairie soil, underlaid by yellowish clay, and underneath that some gravel and boulders lying on top of limestock rock. The earth was loaded on cars and the embank- ment built with it, the stone used to riprap the outside of the em- bankment, and the embankment generally on that section of the canal. The stone, I think, came from the quarry, and was dumped from cars on the slope; it was not placed by hand at all, either on the outside and inside slope, on each side of the embank- 4302 ment. Counsel eok Defendant. How does the material of which these embankments of the Hennepin canal are constructed compare as to durability and impermeability with the material of which the towpath bank is constructed at Dresden Heights! (Objection overruled.) I should say that the material of which the towpath of the Illi- nois and Michigan Canal is constructed, for three or four 4303 miles above the works at Dresden Heights, is of better ma- terial for a water tight embankment than the material used in this embankment in the river at Milan. I have inspected the material in the towpath bank at Dresden Heights.' I know there has been no impairment of those embankments. They stand to- day as they were left fourteen years ago. I saw them last Satur- day, Muskrats or other vermin have not committed any depre- ciations so as to impair them. 4304 The rip-rapping done upon these embankments in the Hen- nepin Canal near Milan was loose stone dumped on the slope. In my opinion riprapping which consists of stones of various sizes dumped on an embankment, furnishes a much better protec- tion against the wave wash and other action of water, than of stone of comparative!}’ uniform size laid by hand, in a way that is commonly termed ‘‘sloped paving.” In case there is any wash- ing away of the material underneath, the loose stones settle down at once and remedy the trouble, and in “slope paving” it often happens that the waves will run up the slope by the winds, go 1244 Wheeler, — Direct Exam. — Continued. through the interstices and, coming back through the material un- derneath, bring it out at the foot of the slope. At Lincoln Park the slope paving is one example of that. I have had several examples of that on my own work where slopes in front of bridge abut- ments were paved in that way and difficulty has developed; but where the slopes have been protected with loose stones, dumped hai3hazard upon the bank, very little trouble is experienced. On the feeder of the canal, 22 miles on one side and 19 miles on the other have been protected by rip-rapping in that way. Of the four and a half miles of canal at Milan the outer river slope and the outer slope adjacent to the creek, and a large part of the 4306 inner slope of the canal were protected in that way and the protection has stood there 13 or 14 years without any damage. It is on what I have actually observed that I base my opinion that the loose!}" dumped stone, rip-rapped, forms a better protection against the action of the water than the so-called slope paving.’’ I have been at Dresden Heights since the proposed dam of the Economy Light & Power Company was commenced, was there in April this year. I somewhat examined the towpath bank of the canal above the dam, drove along it from Channahon down to near the site of the works and walked the remaining distance along the towpath. In quite a number of places I examined the inside slope of the bank, in the canal. I observed the work that had been started by the Economy Light & Power Company. I noticed a berm on the inside slope of the bank. I judged from its appearance it was formed partly by the action of water wash- ing tlie bank away, and partly by the bumping of rip-rapping and stone which was below the water surface at the time I was there. The rip-rapping below the water line I could not see, but I used a stick and found stone beneath the surface of the water. There was work there recently dumped on that berm for a considerable distance above the power station. I had no means of telling whether it encroached below the water surface, but this line at the water surface would indicate that it did not encroach upon the prism. At one place they had encroached to a little extent to obtain the foundation or support for a hoisting engine. I suppose it was temporary, I should say it went out 5 or 6 feet into the water line, perhaps 15 or 20 feet long. 1245 Q. I show you two blue prints, one that has been marked ''Cooley Exhibit 28,” one that is marked "Plan of Dam May 20, 1908,” purporting to represent some construction work here, — have you examined that! A. I have seen both these plans and was fur- nished with a copy of this one marked "Cooley Exhibit No. 28.” Q. If a pool of water should be formed by the construction of the dam and works — in the Desplaines Diver, shown upon these ^ two blue prints, in the manner here shown, at the point where you have seen the commencement of work at llresden Heights, what effect, if any, in your judgment, would that pool have upon the towpath bank against which it would flow? A. One effect 4312 of raising a pool of water against the outside of the em- bankment would be to reduce the hydrostatic head upon that embankment by the amount of the water raised up against the bank of the embankment. Another effect would be that the action of the waves might, and probably would, in time, eat into the em- bankment a certain distance. One of these changes would be to make the bank more safe, and one would be to make it more un- safe. The term "hydrostatic head” is used to express the pressure of water in a quiescent state, and the measure of that pressure would be the difference in level between the water on two sides of any partition. At present at low water the tow of that em- 4313 bankment generally is dry and the effective pressure is that due to the difference between the level of the ground at that place and the water level in the canal. If the water on the out- side was brought up to the level of the water on the inside, then there would be no pressure upon the canal embankment, tending to displace or destroy it. I believe that it would be entirely feasible and practicable within a moderate limit of cost to protect that embankment from any injury which might result from the formation of such a pool, by simply rip-rapping stone upon the opposite slope, at such time and places as time showed as necessary. Part of that bank is already rip-rapped on the outside in places, probably that rip-rapping would be sufficient. Where the embank- ment is immediately adjacent to the river bed rip-rapping would 1246 Wheeler, — Direct Exam. — Continued. be needed sooner than in the upper portions where it is not ini' mediately adjacent. The outerbank is quite well protected by treer and brush now. In my judgment the proper thing to do would be to let time tell how far up it would be necessary to continue the rip-rapping. The wave action on that emhanlonent I feel sat- isfied would be very slow. 4315 I noticed there were quite a number of animals digging holes into it and bringing material out. I suppose they were woodchucks. I don’t remember seeing any crawfish, I presume they were there; I don’t remember seeing any muskrats, or indi- cations. The formation of the pool would prevent the depreda- tions of woodchucks below the pool level. I suppose that musk- rats would endeavor to burrow along if they found a suitable place. Eip-rapping is a pretty thorough protection against rats. It would be feasible and practicable to maintain the bank, after rip-rapping, against muskrats. The bank would he saturated 4316 of course, below the pool level. The saturation line that would be dangerous to an embankment, would be that from a higher head of water. Experiments have shown that there is a saturation line in embankments descending from the water level down through the embankment, and it is considered that the dimen- sions of embankments should be such that it always covers the saturation line. In that particular case, it would be the saturation line from the inside, which would be an element of danger, and that would not be changed as I can see by the raising of the pool on the outside. In my opinion, the formation of the pool at this point by the work shown upon these different blue prints would not cause saturation which would give any more element of danger, if it were rip-rapped in the manner in which I have described, than that cause. 4317 I remember the Adams Dam in Joliet. It was in existence when I was making the survey in 1888 to 1890. I am some- what familiar with the conditions which existed at the point where that dam was, and the condition of the river and the canal bank. Counsel eok Defendant. Will you state briefly what were the conditions there with reference to the embankment being flowed on 1247 one side by the river and on the other side by the canal, if you know ! (Objection.) A. I recollect the Adams Dam, and the way it came over towards the canal bank; I have no recollection, if I ever knew, and I do not just remember how the Adams Dam connected over on that side. I was under the impression that there was some structure in there. Counsel for Defendant. Assume, colonel, that this map which I show you, and which I will mark Woerman Exhibit, June 8th (Atlas 3978), shows a correct representation of the cross-section of the embankment at the point where the Adams Dam was; and assume, also, that the other cross-section at the point where the proposed dam is being constructed is correctly represented; and state whether or not in your judgment there is any greater danger to the canal bank at the point where the Adams dam was by reason of the water in the river flowing up against the bank than there would be to the towpath bank near Dresden Heights if this pool should be formed by the construction of the Adams Dam. Counsel for Complainant. I object, because the exhibit and the assumptions to which his attention are directed start with that proof; and, secondly, if proved are silent on the points of difficulty and do not convey the information as to the controlling condition. The Court. He may answer. 4320 A. I should say that there is no material difference in the danger from the river itself on that side. The embankment as proposed at the site of the proposed work has a wider base than the other, which would be an element of safety; but from the action of the river itself I could not say that there would be any particular difference between the two. I don’t recollect that I noticed whether the bank at the point where the Adams Dam was had been impaired in any way by the action of the water in the^ river at the time that I saw it. I do not remember that the embankment had a vertical wall on the canal side. I am familiar, to a limited extent only, with the high water 1248 Wheeler, — Direct Exam. — Continued. conditions of the Desplaines Eiver, — not since the waters of the Sanitary District have been turned down the channel. Prior to that, and during my surveys, I made investigations in regard to that matter. In my opinion, the pool formed by the construction of this dam could be adequately controlled by the gate shown upon the blue print which I have examined, and by the spillway and general construction there, so that the canal bank would not be overflowed, and, in my opinion, the plans there provide for a sufficient control of any maximum flood likely to occur in that river. 4321 Counsel foe Defendant. In your judgment, would there be any necessity for the adequate protection of the canal bank to pave the top of the towpath bank or pave the inside of the bank? (Objected to as leading and suggestive. Overruled as di- rectly and specifically rebuttal.) A. I do not believe it would be necessary to pave the towpath on the upper surface; the only reason for paving it would be to care for the travel over it of teams and vehicles, and the mate- rial of which it is composed is already firm, good, solid mate- rial, and make a fair roadbed surface now. I am familiar with the old Kankakee feeder that crossed the river above the point where this dam is to be constructed, 4322 I have been there and been a short distance up the feeder, perhaps a mile and a half, or such a matter. I have made an approximate estimate of the cost of the reconstruction of that feeder as a navigable feeder, and the connection with a re- construction of the aqueduct across the river, entering the canal, also an approximate estimate of the cost of reconstructing the feeder, with a connection between the south side of the river and the canal by an inverted siphon and guard locks for navi- gation across the pool of water that would be formed by the construction of this dam. Counsel foe Defendant. How do these estimates compare? (Objected to as irrelevant, incompetent and immaterial, and because there is no foundation for it in the testimony of this witness; overruled.) 1249 4323 A. I estimate that for the purpose of carrying naviga- tion across the river on the level of the present feeder, the building of the aqueduct, including new concrete piers, steel trusses and floor system, and reinforced concrete sides and bottom, would cost approximately $65,000. The cost of the necessary guard locks on the north side of the river will cost $10,000, making a total cost of $75,000. Under the alternate project of carrying navigation across the river and supplying the canal with water through an inverted siphon under the river, the cost^would he as follows: Pipe, 6 feet in diameter, 752 feet long, would cost $4,- 904; excavation for placing this pipe, 1,800 cubic yards at $2.00 per cubic yard, $3,600; coffer-dam and necessary pumping, I esti- mate would cost $10,000; two locks, one on each side of the river at $20,000 each, $40,000; making a total cost of that project of $58,504. I have had occasion to construct inverted siphons 4324 and guard locks in my work, and am sufficiently familiar with all kinds of work in those estimates to say that they are approximately correct. I do not believe there would be any diffi- culty in feeding the Illinois and IMichigan Canal through an in- verted siphon from the Kankakee Eiver, by an inverted siphon placed under this pool of water which would be formed by the dam at Dresden Heights. Both at the present time, and after the construction of the proposed dam it would be safer construc- tion to carry the water through in a pipe and have two locks on the shores. I am sure there is depth of water enough in the river now for that, for the depth of navigation carriecT in the Illinois and Michigan canal. That would be the safer construction and probably cheaper. If, however, the pool had to be raised, it would be very much preferred. Counsel for Compk\inant. It is understood, your Honor, that this entire proposed project for fitting up a new — is objected to. The Court. Yes. Counsel for Complainant. It won’t be necessary for me to repeat it. The Court. No. 4325 A. I do not believe it would be possible to build an aqueduct across the river there at the present time before the forma- tion of this pool without interfering with navigation on the 1250 Wheeler, — Direct Exam. — Continued. river, except for boats low enough to pass under it. 1 do not be- lieve it would be possible for any boat to pass under the aque- duct, the aqueduct reconstructed across there as it was before it was abandoned during high water stages of the river. Q. How familiar did you become with the river, the Desplaines Eiver, during the two years which you wqre engaged in the mak- ing of ihe surveys under Captain Marshall! A. In that portion of the river above Joliet, up to Summit, I have been along that many times, camped along there while surveys were in prog- 4326 ress. Below Joliet I went down a number of times, went through the river in a skiff, and have also been down the canal in a boat, — that was in Ihe fall of 1888 and during the summer of 1889. During the fall of 1888 the river was very low and my men and myself crossed the river back and forth below Sag Bridge, a short distance below. Above that point there was considerable of a pool and we had to either cross on the bridges or use boats. In the spring of the following year there was a considerable flood in the river. I do not remember that I was below Sag Bridge during that period. Below Sag Bridge, we crossed a number of places by simply going from stone to stone, without having gotten in the water to get our feet wet. Q. How long a stretch of the river was it that you did that in! A. I think that we had shoal places here and there, ripples, that we went across on. One place was near the present site of the controlling works of the Sanitary District. The river was very shoal there, very little water flowing that fall in the Des- plaines Eiver. I saw other portions of that region in flood 4327 the following spring. I had parties in the field, but I do not remember that I ever saw the portion in the vicinity of Lockport in flood. I was down the Desplaines from Joliet to the mouth a number of times during the years 1888 to 1890 in- clusive. I passed through the river in a skitf. I purchased a skiff in Joliet and took it down below the Adams Dam, went in the canal, then hauled over the canal embankment into the river and passed down the river as far as LaSalle. There were with me two men and a small boy, — besides myself. In some places part of the crew were put ashore to let the skiff over the rapids. We had to drag thee skiff to get over the rapids. There was one 1251 place soon after we went into the river that we were aground, and we fooled around and managed to get out at the head of Treat’s Island. We ran on to boulders and partly capsized, and found other places with pretty swift water; pretty swift water in the vicinity of the present works at Dresden Heights. 4328 I did not observe the rapids at a place called Smith’s Bridge. The river was rapid at the mouth, hut I do not remember of having seen boulders at that place. At Brandon’s Bridge there seemed to be several channels and gravel bars, the bed of the stream apparently composed of gravel and bould- ers, and we worked our boat through those until we got down to Lake Joliet. That trip was made some time in the month of July; I could not fix the exact date. The Bridgeport Pumping Works were in operation at that time, but I do not know how much water they were discharging into the Desplaines Biver 4329 at that time. There were rapids for a little distance below the mouth of the Desplaines River, I don’t remember any difficulty in navigating them in my skiff, — we camped on the south shore when we had reached the foot of the rapids. I went down there in that vicinity several times, at other seasons during those two years. I have had some experience in connection with my engineering work in the navigation of boats, on the Rock River, also some on the Mississippi River and some on the Illi- nois River. Q. State whether, in your opinion, the Desplaines River was capable at the time you saw it, or during the two years in which you became familiar with it — was capable at any season of the year of being used for useful purposes of commerce. Counsel foe Complainant. I object. It calls for irrelevant, in- competent and immaterial matters, for which no foundation has been laid. The CouET. He may answer. 4330 A. I should say that it was not navigable for commerce carried in boats. It might have been used in times of higher stages for floating logs or timbers down stream; nothing very well could come up stream. I am not very familiar with the Des- plaines since the draining flow has been turned in. I have crossed it at Joliet and been down to Dresden Heights. I think the river 1252 Wheeler, — Direct Exam. — Continued. would not be capable of practical navigation as it was during the two years I saw it in 1888 and 1890 for two reasons, first, on account of the low, small volume of the discharge, and sec- ond, on account of the steep slopes at places. The high water season or set season in this river, from my knowledge of it, is very short, that is that the maximum at the high stage would not last more than a couple of days, something like that. The 4331 course -of the stream between Joliet and the mouth was quite crooked in -places. I do not recollect that it would have been so crooked as to interfere with navigation. The maps that were made of the Desplaines Eiver that were published in connection with the Marshall report, were made under my direction in my office. Q. Colonel IVheeler, state whether or not in your opinion the Desplaines River was capable of navigation for useful purposes of commerce, or would have been capable of such navigation even if dams had not been in the river? (Counsel for complainant objected on account of lack of qualification on the part of the witness, and irrelevant, in- competent and immaterial.) The CouET. He may answer. A. In my opinion it would not have been navigable on ac- count of the steep slope. I have some familiarity with the effect of wave wash on em- bankments. Q. State whether or not if this canal bank above the site of the proposed dam were riprapped, properly riprappeR — state whether or not the wave wash caused by the wind on the 4334 pool to be formed by the construction of this dam, or caused by the action of boats in navigating that pool, would have any injurious effect upon the bank? A. My understanding of that question is that if the bank is properly riprapped, will there be harmful action due to wave wash or wash from steamers? Q. Yes. A. I should say not. Counsel foe Defendant. That is all. 1253 Cross-Examination. 4335 As to whether I was the man in immediate charge of the construction of the Illinois and Mississippi Canal, ordinarily called the Hennepin Canal, I have been in charge of the construc- tion of a large part of it, been at work on that from the time it began, now am in charge of the operation and care of the whole canal. Yesterday, I said where its termini were, and where the feeder started from in the Kock River. The canal leaves the Illinois River near the station at Bureau Junction on the Rock Island road and extends nearly westward to the Mississippi 4336 River, at the mouth of Rock River, a distance of 75 miles. The summit level of that canal is north of Sheffield and the summit level is supplied with water from the Rock River at Ster- ling by means of a navigable feeder 29 miles long. The feeder and the main line of the canal are of the same dimensions, 80 feet wide on the water line with 7 feet depth of water. The locks have chambers 35 feet wide, and 170 long. I commenced the lo- cation for the construction in November, 1890, at Milan, but on account of some legal difficulties the actual construction was not commenced until in 1892. There is some work to do on it to finish it. It was so far finished that it was opened for naviga- tion last fall, October, 1907. Q. Do you remember a report made to Congress about 1895 in which the engineers stated that at the rate of progress which was being made on that work the first half would have gone to decay before the last half would have been completed and the work opened for use! A. I cannot say that I remember such a statement in the report, but I have known of such a statement being made. 4337 The banks are imperishable material. That was dam- aged due to storms and rains, and was not for any exces- sive amount. At that time, however, the rate of progress upon the canal was very slow on account of the failure of Congress to appropriate the money for its construction, 4340 As to whether it is not a fact that the canal banks of the Hennepin Canal did suffer from attacks of vermin very greatly during the construction of the canal. A great many 1254 Wheeler^— Cross-Exam. — C ontinued. burrowing animals made their home along the right of way and no systematic effort was made to drive them out until last year, when we approached the time when we were ready to turn water in the canal. Then a very systematic campaign was waged against them during the last year, and they were killed in large numbers. A considerable sum of money was. expended in exter- minating them and taking their holes out, but it did not delay the opening of the canal in any way. I mean that I got at the work of restoring the banks long enough before the time for 4341 opening so that I had the restoration done by the time for opening arrived. I had several serious difficulties, but that was a iDrecaution which we found it necessary and advisable to take, to examine the banks throughout the whole length, and wherever burrowing animals were found in them, to kill 4342 them and take the holes out. It is a fact that the muskrats in their depredations work in the immediate vicinity just above and below the water line where the water attacks a bank. I would not say that is also true of crawfish. I never saw craw- fish holes of from two to two and a half and even four and five inches in diameter, and sometimes from two to four feet long into an earthen embankment, so that those holes will be partly below and partly above the water line. I think I have seen a crawfish hole two inches in diameter. I doubt if I have seen 4343 one three inches in diameter. As to a crawfish hole two feet long, I have no doubt that many of them are even deeper than that. I would not say four feet long, but I do know that they go down in the ground quite a distance. I haven’t much doubt that they frequently make holes four feet long. Well, the crawfish holes that I have seen are vertical. The object of the ani- mal is to go from the surface of the ground down to where he finds water. I suppose he will keep on going until he gets it. As to it being a place of lodgment for them to run, and that they go by a slanting line with a minimum depth, I don’t know that. The 4344 dimensions I would give for the crawfish inoimds that I am personally familiar with would be about, perhaps, six or seven inches high, and two inches in thickness surrounding the holes, and possibly more than that. The line of the Hennepin Canal lies in the bed of the l\ock 1255 River, opposite Milan, about 4,500 feet. It goes into Big Island and then goes down throngli Big Island to the month of Rock River. Rock River just at Milan divides into two main branches which form two sides of a large triangular island, of which the Mississippi forms the third side, and that island, of some 4345 several thousand acres of land, is called Big Island. There 4346 are three or four other small islands, I would not say at the head of this island, but they lie over north of the upper end of Big Island, and extend np stream perhaps two miles, or nearly that, a mile and a half. Black Hawk’s watch tower overshadows as we go down on the north side of the river just opposite this 4,500 feet. Black Hawk Tower is on the north shore bluff, and from that this work can be seen in the river-bed. Black Hawk’s watch tower, I don’t recollect the height, I haven’t measured it, I should .say is per- haps 125 feet above the water. For a short distance up stream, the bluffs recede from the shore line of the river and the bluffs terminate a very short distance below Black Hawk Tower. There are immediately adjacent to the river for perhaps three- quarters of a mile, lofty bluffs, and tlien further back with 4347 farms lying between the foot of the bluffs and the river. From the river when you get up as far as the Moline bridge, they are much more than 80 rods, and on the south side of the river, the bluffs are from half a mile to a mile away from the river, with a broad bottom land on the south side of Rock River between the river and the bluffs. At the vicinity of this work, for several miles along there. Mill Creek comes down through and floods the broad bottom lands over a mile wide on the south side of the river. It comes in from the south side, but not through marsh lands, and it is not a small creek. It 4348 comes through about a mile of bottom land, which, however, is not level. There is a fall of about 20 feet in that mile, that is from the bluff road that skirts the edge of the bluff on the south side of the bottom lands. There is a broad space of bot- tom land on the south side. Immediately abreast of that on the north side, is where the bluffs terminate, and adjacent — that is where they terminate as to the shore of Rock River, and the river flows straight west from the east to a bed of solid rock, 1256 Wheeler, — Cross-Exam. — Continued. and the river divides out between Milan and Searstown; so that, while it has got these two main branches, it also has several minor channels which enclose Vandruff’s Island and the other 4349 small islands, and there is no water power dam at Milan at the present time. There was one before I began work, which had been built by the Eock Eiver Water Power & Navigation Company, and which had been washed out. I could not fix the year it was destroyed. I believe it was nearly destroyed at the time I made the survey. I think when I. first went there, they were still using some power from it, and by the year 1894 it had been entirely washed out. Perhaps I should correct that ; I would not say entirely washed out, but washed out enough so that it did not yield any power. The Rock River Water Power & Navigation Company had constructed a small canal on the Searstown side of the river long before I began work as a part of that water power and naviga- tion work. I did not interfere with that in any way. The 4350 location was on the south side of the river, and the river runs straight west from the east, for a distance of some five miles there. These two dikes referred to were built length- wise in the Rock River near the south side of Rock River running parallel with the bank of the river and with the current of the stream, and there was no dam at their foot that had to be cal- culated for in the construction of these dikes. There is none now, and they run down into Big Island and the canal is extended right straight down through Big Island to the Mississippi River. I was last at Dresden Heights some time in April of this year. I was there one day only. I started from Chicago to 4351 go that morning to Dresden Heights. I went to Minooka by rail. I think we left the depot here about seven o’clock, or shortly after, and arrived there shortly after eight. I may be mistaken in that, but it was in the morning between eight and nine o’clock. Then I took a carriage from Minooka. We drove to Channahon and then on to the canal towpath and thence down to the house just above this work in progress. The length of time it took to drive over there was, I should say, somewhere near an hour and a half. We stopped at quite a number of points 4352 along the canal embankment. I came back the same day by the same method, got home to supper in Chicago, between six 1257 and seven o’clock. We were at and around Dresden Heights a portion of the day, taking so much as was necessary of the fore- noon to get down there and so much as was necessary of the after- noon to get back. Mr. J. W. Woerman and Mr. T. D. Johnson were with me, nobody else. I have not been there since. I had been there before. I had been down to Dresden Heights in 1888 and 1889 when I was making this survey. 4353 I had not been there between those times. Then my knowl- edge of the situation down there so far as it is derived from personal observation was derived in this portion of the day in April when I made this trip, together with my observations that I made there in 1888 and 1889. My knowledge of any recent work was derived from my observation on that one day, and a study of the plans together. I had access to the plans, and made some study of them in connection with my observations. Q. In your answer about this work, you have taken into ac- count what you learned from that examination and from youi^ study of the plans as well as what you learned from your 4354 personal observations on that day? A. Yes, sir. Counsel for Defendant. I understood the form of that question — the objection was sustained to the form, the court say- ing that he could ask the witness what his answers were based upon. The Court. No, he don’t have to ask him directly. He may ask him indirectly on cross-examination. Counsel for Complainant. Q. You say, Mr. Wheeler, that you poked around with a stick down there? The Witness. Eeferring to the picture that was shown me in the direct, Woerman Exhibit, June 8th, I think I said I could not see what was under the water. I don’t think I said that I could not say what was under the water, because I was positive that it was stone. As far as I could poke with a stick in 4355 places, the water was not transparent. I poked around with a stick here and there at points where I was walking along and the berm offered an opportunity for me to step down; some places there were stones that I could step on. There was no ef- fort made to examine the whole length from Channahon down, 1258 Wheeler, — Cross-Exam. — Continued. but only at occasional points. We got out of the carriage several times going down there, and then we left the carriage at that locktender’s house and walked from there to the site of 4356 the work. We got out several times, more particularly to examine the top of the bank, when we were in the carriage. When I speak of the top of the bank, I mean the side towards the river. Before I got down to the locktender’s house, I don’t re- member for sure whether I made that kind of an examination at times when 1 got out from the carriage. I know that I did sev- eral places afterwards. I did at several points, after I left the towpath walker’s house, poke with my stick down into the canal water and feel the stones. I would not say twenty times, very considerably less than that. Perhaps half a dozen times where the berm afforded a footing for me to go down on it and 4357 make that exploration. The berm on that day mas mainly out of water. It was a nearly horizontal shelf. In some places where this recent work had been in progress it was cov- ered with stone slanting upward to the top. I did not make an examination at those points. My examination was made where there had not been any stone filled in on the berm. Whether that berm was one which had been constructed as a part of the or- iginal construction of the canal, or' had been formed by the opera- tion of nature upon the banks after it was left from the differ- ent natural forces, waves, wave wash, frosts, rains, weather, I could not say positively, but I judged from the appearance that it had been formed through the action of the elements. I will qualify that. Its width might have been increa^sed by stone 4358 dumped on the inside below that level, but the appearance was what we call a natural berm as distinguished from an artificial herm, meaning by natural berm, one that has been made in the process of time. With a bank which is not furnished with artificial berms in the construction to start with, or with artificial protection to prevent berms, there will form a berm by natural operation of the water in the banks of the canal, and the berm would take the form of the berm that you’ found down there, and that you would find here on this lYoerman Exhibit of June 8th, if that pink paint on the canal side and the stone that is rep- resented by it were not there. 1259 4359 There would be a liorizontal shelf there nearly at the water line edge, and the material which had been formed in the slope out of the operation of the waves and other natural causes would have gradually slid down the bank to the bottom of the canal. I would not say necessarily that it would slide down to the bottom, but slide down part way. It would be stretched along down the slope below the water, and in process of time would make an indentation in the bank at the point where the berm is and the tilling in there below that point. That is the natural operation of the water on any such bank, and that would be the tendency of this bank. And that would go on until the berm had gone in deep enough and the slope below had become low enough so that the material would then cease to slide. It would reach a position of equilibrium, probably in time, and I found some places along that canal wdiere this berm projected out between five and six feet. 4360 The dimensions of the Illinois and Michigan Canal at that point are 60 feet water line and 6 feet deep. It may be silted up very much for all that I know, but that is the standard dimen- sions fixed for that work. I think 6 feet deep is the depth on the miter sills, indicated to us now. I don’t know how deep it was there. For any given depth of water I can tell you what the dydrostatic pressure is, but it does not depend upon the width 4361 of the stream. It makes a difference whether you ask at the top of the slope or at the bottom of the slope. If you were at the water line there would be no pressure, and as you went down and the depth increased the pressure would increase 624 jiounds per square foot — 62^, more nearly, — at a slope of two feet to one, that is two feet on the horizontal and one foot down ver- tically. The pressure would be 62^ pounds per square foot in every direction. The slope would form the hypothenuse of 4362 a right angle triangle there. On the diagonal, the pressure would be 62f pounds to the foot at a point one foot below the surface. One foot on the diagonal or one foot vertically, it would not make any difference in which direction it takes that plane there at that point, the pressure is equal in all directions, the hydrostatic pressure. The pressure at a point two feet down that slope, a square foot down there, extending from a point two 1260 Wheeler j — Cross-Exam. — Continued. feet down to a point three feet down on the diagonal, would have to be computed. It can be computed. The pressure will vary from point to point as you go down, but at a foot from the surface it would be 62J pounds, and at two feet from the surface it would be twice that. At three feet it would be three times that, but it is varying and if you ask for the pressure on a foot that extends, say from two feet down to three feet, then it would have to be 4363 computed as an average between those two. It would be just the same whether the direction were given diagonally or vertically so long as the ed^i:es were that distance from the surface. The pressure at that point would be the same as if you would measure that diagonally and take the pressure at that point, provided you get the same distance below the surface 4364 on a vertical line. A common graphical representation of that pressure is a triangle with the apex at the surface of the water and the vertical side of the triangle represents the depth and the horizontal distances in that triangle represent the pressure at any given depth. Now, if we should take a certain area at a certain depth it would be represented, the total pressure on that, by the area of the triangle between two lines, horizontal lines, drawn from the vertical line at the given depth. If this is a 4365 foot, the pressure on the upper edge is represented by this line (indicating), and on the lower edge by that line (indi- cating). Now, the ratio of those two sides at this latitude is ap- proximately 62J pounds. The hydrostatic pressure at the depth of four and one-half feet would be approximately 280 pounds per square foot. For four and a half feet in depth with a slope of two horizontal to one vertical, the hypothenuse would be approxi- mately ten feet. The total pressure upon that inclined slope per lineal foot of slope would be represented by one-half of the pres- sure at a foot multiplied by the area of one foot of slope or the product of ten multiplied by one-half, multiplied by 280, equals 1,400 pounds. If the elevation of the water in the river were such that the top of the water in the river pool were on a level with or below the bottom of the water in the canal, the presence of 4366 that pool of water in the river would relieve this bank by whatever pressure there was on the embankment due to the fact that the water percolates or seeps through the embankment, and partly saturates it. Experiments have shown that there is 1261 a saturation line in the embankment that has water against it on one side and the hack of the bank is exposed to that hydrostatic pressure as well as the front. Now, in figuring the pressure on a bank of that kind, I would not take the depth on the front angle, but I would figure that depth to toe of the slope on the outside, there will be saturation and percolation of water running 4367 from the canal and seeping through all the way down to the toe on the opposite side. It may not go to the toe of the bank; sometimes it does go down and lays there, and the pres- ence of a pool on the other side, although it don’t come up as high as the bottom of the water in the canal, still would operate as a relief and support to the bank. There would be a saturation from the river side up to that level. The force of saturation would operate from the river pool in the same way proportionately to the amount of water within that it operated from the canal bank proportionate to the amount of water there, but it would be an element of danger if the water surface on the outside of it was higher than the water surface on the inside. Q. Wouldn’t it be so if the water reached the level of the bottom of the water in the canal*? A. I do not consider it so. Q. You think that it certainly would when it reached the same level on both sides? A. No, I would say then that the 4368 embankment was in a condition of absolute safety, by reason of the fact that the pressures were alike on the two sides. The pressure not necessarily operates by means of saturation. It might be an impermeable bank, it might be a masonry bank, as far as that is concerned. It would depend on the saturation line, some kind of earth would have a different saturation from others, but with the water level on — at the same elevation on the two sides a bank of any material would be safe as far as pressure is concerned. It is not true. Colonel, that whatever danger there might be from saturation when it reached the danger point would be in- creased when you put saturation on both sides. Q. The court asked you. Colonel, whether the pressure would be the same on the bank where it was substantially vertical, as in the picture, the upper picture, Woerman Exhibit of June 8th, that it is on a slanting bank which is shown in the lower picture. 1-62 Wheeler, — C ross-Exam. — Continued. What was your answer to that question? A. That per square foot of area the pressure is the same at the same depth. If the court means, however, by his question, tending to move 4369 that bank horizontally, then I would say that the pressure is exactly the same at whatever angle that slope lies. Q. Then the pressure being exactly the same, the pressure would be the same in the two banks, per square foot? A. At the same depth in a horizontal direction. Q. Then if the bank was made vertical, as it is in the upper picture, the number of square feet to which that pressure would be applied would be considerably less than where the bank is on a diagonal of two to one, would it? A. Well, there are more square feet on the inclined slope but the pressure is reduced hori- zontally to exactly compensate for that slope. Q. Then the statement that it has the same per square foot is a mistake? A. No. Q. You said a moment ago that the pressure would be the same per square foot? A. At right angles to the surface. Q. No matter at 'what angle to the bank. Now, you say that if the bank is made slanting the pressure per square foot will be reduced exactly enough to compensate for the increased number of square feet? A. No, you confuse my answer. Q. Put it straight. A. I say that the pressure horizontally will be reduced in exactly the same proportion that the area is increased, by that slope, so that the total horizontal pres- 4370 sure will remain the same whether the water presses against the inclined slope or a vertical one — Q. But not the same per square foot because the number of square feet had been greatly increased, had they not? A. There is a difference between the unit of pressure and the resultant pressure horizontally. Now, you are confusing the two. 4371 Q. No, I am not confusing anything. Colonel, I want to get your views, that is what I am after. I want you to tell us — Counsel for Defendant. His view is that you are confusing it. Counsel for Complainant. Have your fun. 1263 Counsel for Defendant. I would like to have the Colonel elab- orate on that view a little. Counsel for Complainant. Go on, Colonel. A. I have finished. Q. Now, then, do you still say that the pressure would be the same per square foot no matter what the angle of the bank? A. At right angle to the surface pressed upon, yes, the same per square foot. Q. The water does not press at right angles to the surface on a slanting bank, does it? A. Oh, yes. Q. It does? A. Yes, sir. Q. It presses at right angles to the surface on a vertical bank also? A. Yes, sir. Q. And the vertical bank has fewer square feet than the slant- ing bank? A. Yes, sir. Q. Then the pressure on a vertical bank is less than the pres- sure on a slanting bank? A. It is but the directions are not the same, and I qualified my answer by stating that the horizontal pressure tending to move the bank horizontally would be the same in every case. 4372 Q. Then it would be a different quantity per square foot in order to give the same results, would it not? A. No. Q. If you had a large number of square feet, you will have to change the amount per foot in order to produce constant result, won’t you? A. No, I say the direction in the pressure — Counsel for Complainant. May I ask one question there : Didn’t you say, Mr. Wheeler, that in hydraulics the pressure is equal in all directions diagonally, laterally and every other way? A. At a given point below the surface, in a liquid the pressures are in equilibrium, equal in all directions. As to bad breaks on that feeder that comes down from Sterling into Hennepin Canal, I never heard of any. I have crossed the Desplaines Eiver quite a good many years ago, but my first 4373 knowledge of it to any great extent was obtained in the fall of 1888. I was under order to make surveys and estimates for a 14-foot waterway, connecting the lake at or near Chicago 1264 Wheeler, — Cross-Exam. — Continued. with the Illinois Eiver at LaSalle, and I was placed in charge of that work. The first thing that I did was that I went into the held with a party that camped at Lockport, and commenced work on that survey. The work of survey extended for the remainder of that year, and practically all of the next year and included a small triangulation, a system of levels, the topography and exam- ination of the strata of rock below the surface of the ground. lYell, I established a camp, tent and a cooking outht and sheltered and fed the men at Lockport. I lived in camp with the men. 4374 As the work progressed the camp was moved along from place to place and when the held work was done I came into the city and had an office here. I think that during the month of November we broke up camp. I have no means of hxing that date now. I went to work in September and quit work in November. That is, quit living in camp. We simply changed the manner of our work. The actual meas- urements with the survey of the stream were largely done at that time, and our men subsequent to that time boarded where they could. 4375 While I had an office and an office force engaged in re- ducing and platting the notes, yet I went from the office into the held back and forth to the parties who were doing work there l)ut I did not live in camp any more after that fall. During the two months that I was in camp with the men, I was engaged, was working continually.' I saw that the men went to work in due season in the morning, went with them, laid out a svstem of tri- angulation; was continually in the held in looking after the work in the daytime. Frequently days I would be in the camp attending to correspondence and the hnances of the survey, but I was busy all the time. As to taking personally any of the measurements, I could not say whether I did. I did not many of them. I did not carry 4376 the chain. I might have handled the level. I remember that I made the observations for determining the azimuth largely myself. That is the determination of the position of the true north and south line. That was when I began and at inter- vals throughout the work. None of that survey was done by the needle, it was all azimuth work. The particular function of this 12()5 work that I did from time to time determining tlie azimutli. I determined the direction of the true meridian by observations upon the stars, and that was used in the survey, so tliat all their lines would be run to the true meridian. I did that by astronomical ob- servations. I gave the delineation of those lines, or this true meridian to the subordinates after I had made the obser- 4377 vation. That was always made in a way that it could be connected in with the survey. I did that not more than half a dozen times in the course of the work. As to the principal use of instruments that I personally made in the field on this work, I don’t recollect just how much I did do. 1 know that the little triangulation that was done, I looked after that, the setting of these stations. There was not very much of that in that survey, but I will say that generally the chief of the party does not do much of the actual measurement himself. This map which is marked ‘^Duplicate of Zarley’s Exhibit/’ and wdiicli was sheet 13 in Major Marshall’s report, also marked ^‘Cooley 25” (Atlas, p. 3969; Trans., p. 6608; Abst., p. 1931), it is so long since I have seen that map that I hardly recognize it as one of my own production and it says so in the title that it is. 4378 I could not say wdiether that is actually a whole one of the waterway maps, or whether it is a reprint of part of it. I could not find on that map any specific point that I indubitably remember as mine, by which I identify my work on that map. It might be an imitation. I do not vouch for its authenticity at all. So far as the work that was done by me in connection with that map is concerned, or the wmrk that purports to be repre- sented by it, there is no measurement that I personally took that is recorded there in a way that I identify as mine, and that would probably be true of all the other maps, that azimuth line indicating my true meridian. I don’t see it here. Nothing by which I can identify it. My recollections of the Desplaines Eiver itself, are recollec- tions of work that was finished some eighteen or nineteen years ago ; recollections as it was at the time I was doing that work. I had had no occasion to refresh my memory about that. I have 4379 not made any effort to do so. Q. You speak in the report signed by you, which was 1266 Wheeler,— Cross-Exam. — Continued. published in House Document 264, of the House of Kepresenta- tives, 51st Congress, first session of the Ogden Dam, and you made the statement: ‘^At low water the entire flow passes in part through the Ogden Dam, but the greater portion into the canal through the permeable soil separating themC’ Do you remember the Ogden Dam, Colonel Wheeler! A. I remember something of it; yes, sir. Q. Eeferring to Hillebrand exhibit labeled ‘‘Sanitary Dis- trict Chicago Map and Profile,” you referred to this Ogden Dam, which separated the DesPlaines Eiver from the Ogden ditch, which connected it with the south branch of the Chicago Eiver, by that statement! A. Yes, sir. Q. And in this statement, that: “At low water the entire flow passes in part through the Ogden Dam,” you mean that it passes in part out of the Desplaines Eiver through the Ogden Dam into the Ogden ditch and so out into the south branch of the Chicago Eiver! A. I suppose I did if I made that state- ment. Q. Well, just glance at the statement, the last sentence on the bottom of page 40 of the document. (Showing witness book.) You will find your signature to the report over here a page or two further on. That is correct, is it not! Now, you have 4380 examined the statement, is that correct! A. I suppose it to be, yes, sir. Q. Now, the other, the remainder of the sentence is: “But the greater portion into the canal through the permeable soil sepa- rating them.” By which you mean that the water of the — the greater portion of the water of the Desplaines Eiver at times of low water soaked through the permeable soil into the Illinois and Michigan Canal, which was close by it! (Thereupon counsel for defendant objected to the question, and then after some colloquy of counsel on the ground that the witness did not have the book in his hands, the witness answered:) 4383 “I think I understand this question; and I believe that the statement there in regard to the low water flow of the Des- plaines Eiver is correct as applied to that time.” Counsel for complainant then asked: “Now, in order that you may be clear, I will read again 1267 the statement that: ‘At low water the entire flow passes in part through the Ogden Dam, but the greater portion into the canal through the permeable soil separating them.’ Is it correct, Colonel, that you meant to say that these two causes operating together, the flow of water into the dam into the Ogden ditch and so into the Chicago Eiver for one, and the soaking through the permeable soil into the Illinois and Michigan Canal as the other, those two causes could absorb and take up the entire flow of the Desplaines Eiver in times of low water?” To which the witness replied, “Yes, sir.” And that as between those two causes, the cause of seepage and soaking of water of the Desplaines Eiver into the canal 4384 was the greater of the two. It appears I so considered it at that time^ There was more water that got away from the Desplaines Eiver by soaking into the canal that there did by running through the Ogden ditch into the Chicago Eiver, appears from that statement. I had no experience in canal construction or operation prior to the Hennepin Canal. I had observed quite a good many canals before my work along that. The portion of the Hennepin Canal built at Milan went into operation in the spring of 1895, and has been continuously in operation ever since. That is four and a half miles of canal proper and eight miles of river. I treated the Eock Eiver itself as a part of the canal for those eight miles. 4385 The old plan called for the entering the Eock Eiver at Mere- dosia, but the plans as actually constructed, the canal enters the Eock Eiver at the mouth of Green Eiver. At any rate, this eight miles would be the point where these banks are, and the Eock Eiver is the canal, and the canal is the Eock Elver for those eight miles. I think there are three rock reefs in that distance, the remaining distance it is a sand bottom. 4386 I have never made any test borings or explorations, but others have, and they report that it is material that can be dredged down to the required depth, except in those rock reefs. The practice with reference to paving towpaths on the Erie Canal I ought to know. I carried a level the whole length of it. It was not paved on the towpath. I don’t remember any point at that time that was paved on the top of the towpath, but it was paved 1268 Wheeler, — Cross-Exam. — Continued. on the slope next to the water, in 1875. There were a good 4387 many steamboats on the canal at that time. The greater proportion of the navigation was by means of barges hauled by horses and mules. A great change may have taken place in the ’70 ^s in the use of the Erie Canal in that particular, but it had not taken place at the time I was there, because the major portion of the transportation was done in those barges hauled by horses and mules. 4388 I did not make any approximate estimate of cost of the amount of work necessary to protect this towpath bank of the canal against the operation of this pool, never made any figures on that at all. Well, I know only in a general way what it costs to do that kind of work, but I have, made no measurements of quantity there, or no estimate of cost. I gave some figures on the cost of restoring the aqueduct, called that $75,000, and gave some figures on the putting in of a syphon pipe to feed the canal, and also the erection of a couple of locks. Those I figured to amount to $58,504. The maintenance of two such locks and the 4389 maintenance of the syphon would entail costs for mainte- ance. I would say that in all probability the cost of main- taining the aqueduct there with one lock would exceed the cost of maintaining two locks and a syphon pipe in the end. I would not consider it very safe construction to maintain the aqueduct without any lock. The cost of maintaining a double system of locks together with a syphon pipe feeder might and might not exceed the cost of the open aqueduct without a lock. That aqueduct is in a position where it is exposed to great danger and it is so that a single accident to the aqueduct would exceed the maintenance of two locks for a long period of time. 4390 I made no allowance in my figures of any capitalization of the cost of maintenance. I did not make any allowance for the cost of operation. As to the cost of operation from this double set of locks on each side of a mill dam built of this kind, being very much greater than the cost of operation of an open aque- duct, I did not estimate on a double set of locks on each side of that river. Your question is erroneous in that; a single lock on each side of the river. The cost of maintenance of an aqueduct there is a very uncertain quantity. I have never maintained an 12G9 aqueduct on piers in that way. I have had to do with that sort of work. Unfortunately, I have nine of them to look after now, much to my regret. I would rather have them siphon pipes, 4391 but it could not have been done in the situation where these were located. I figured here on a pipe 752 feet long. They extended from the upper end of one lock past the lock and past the entrance for a boat to enter within the shore before locking, and the width of the river, past the lock on the other side. If you had a siphon pipe for supplying feed water, and if you had a lock system for getting l)oats across, and you were trying to use them both at once, you would not need two sets of water. The water is feeding down and it would be necessary to supply whatever water was used in the actual lockage, but otherwise the water would feed through the siphon pipe and go into that level of the canal. I understand that this Kankakee feeder brings water from the Kankakee Kiver across the country and across the top of the river at an elevation of some 76 across the river on piers into the canal. 4392 I am proposing to attach my siphon pipe to this Kanka- kee feeder some six dr seven hundred feet to the left of the place where it crosses the river and take the water out of the feeder and carry it down into the river and then up to the canal by means of that pipe. I did not say 700 feet from the river, but the total length of the pipe is that. At any time you wanted to use the lock for locking a boat down in the river by means of this water, you would not have to stop using the syphon while you did it. There would be a lock full of water locked into the river. I would not say that even it would be double the 4393 amount of the lock full. The flow through the pipe would be continuous, whatever was demanded to supply that level of the canal or any demand upon it. Whenever a boat passed across they would abstract a lock full of water on each side of the river from that supply. The current would be running through the syphon all the time. As to there being this lock full along- side of it in addition to what you took out of the main current, there would be that much water that you would use from the supply brought down by the feeder. As to making a computation on the supply of water which the 1270 Wheeler, — Cross-Exam. — Continued. Kankakee Dam would afford, in this way I did. I assumed that the supply would perhaps he from 80 to 100 cubic feet per second in that feeder. I assumed that the Kankakee River can supply much more than that if necessary. The date upon which I 4394 made that assumption — one thing was the reported com- putation of the measurements made from the early survey of the actual flow in that river. I did not hunt it up myself, hut it was reported to me by the person who did it, Mr. J. W. Woer- man; he told me of a measurement which he found, an actual measurement. That amounted to something over 80 feet per sec- ond. My statement as to the adequacy of this system is not based on that. As to knowing what current of water was required in the Kan- kakee feeder as it originally existed to make a discharge of 100 feet per second, I have not computed it at all. I saw the feeder and know its dimensions approximately. I did not think there would be any difficulty in bringing down as much water as that through that feeder and raise the water high enough at the 4395 head to bring it through. I haven’t made any investigation as to what the conditions of the water supply were with reference to this feeder at all. I did observe what the level of the floor of the aqueduct was. What it was in actual feet, well, I could not to my knowledge say, because there wasn’t any meas- urement made when I was there, but I know approximately where it is. Its relation to the crest of this dam is only a short distance, I believe, above the crest of the dam, probably the pool, also. The bottom of the aqueduct is above the top of the dam a slight amount. Q. Well, what you know about that is something that you learned in the course of your conversation with these gentlemen who were with you! A. And information that they furnished me. I believe I have that data in my pocket, if you will allow me to refresh my memory. Q. They gave you some figures on it, did they? A. Yes, from the actual levels. Q. Well, if you have got in your pocket the figures of the actual level of the bottom of the aqueducts as compared with the crest 1271 of the dam and you want to refresh your memeory about - 4396 it, I would be glad to have you, I will be very glad to have you give it to us. A. The figures that I have show that the recess in the pier is below the level of that dam, but that the bottom grade of the feeder is at the elevation of the crest of the dam. Those figures were given to me by Mr. Woerman. The eleva- tion of the pool level is given as grade 77. The elevation in the recess of the piers of the acqueduct on which the aqiieduct trusses rested is 73.6. The bottom grade of the feeder is given as 77.0. I have after that the note Sanitary District. It is possible that they may refer to the level of the Sanitary District instead of to the same datum that these others referred to. I personally visited the Bridgeport pumps from time to time from 1881 to 1890. I have not done so since that time. Q. Do you remember. Colonel, that during the period 4397 that this survey was going on there were from time to time time when the pumps were stopped in their operation? A. I do not remember that they were. Q. Let me refresh your recollection. Don’t you remember it was one of the things that you looked into that you had them at one time — that arrangements were made that the pumps were stopped for about a week so that you could make observation when the pumps were not in operation? A. I don’t recollect such a thing. Q. Isn’t that the fact? A. I do not recollect it, I say. Q. And then again you had observation of their maximum ca- pacity? A. I have no recollection of any such circumstance. Q. And then again observations of their ordinary state of operation? A. No, sir, I have no recollection of that either. Q. Don’t you remember that there was considerable complaint made from the people down the valley about the stopping of the pumps? A. No, sir. Q. And the reduction of the volume of water that was coming down? A. No, sir; I don’t recollect any such thing as that. The size of the boats that I use in the Hennepin canal is less than 1272 Wheeler, — Cross-Exam. — Continued. 35 feet in width, less than 155 feet in length, and drawing 4398 not to exceed seven feet. How mnch of a fleet of boats I maintain on the canal, I do not know. Under the control of the canal officers at present there is one steamboat, a stern wheel towboat and one towing launch, gasoline, one boat termed an office boat. And I am bnilding 12 barges for freight of which nine are now- complete and one launch — one flat boat has been converted into a quarter boat for the men. We have borrowed, I think, five office boats from another district. Those are boats directly under my control on the canal aside from small boats. The tow boat to which I have referred is a launch about 40 feet in length; the beam I do not know, probably not far from seven feet. And it has a two-cylinder gasoline engine sixteen horse power connected with a wheel, a towing wheel about three feet in diameter; its ordinary draft when in operation I suppose is about three feet. It wdil tow these towing barges to which 4399 I have referred. I am using it all the time for that purpose. Well, we use those exclusively for the purposes of the canal. We are delivering lumber and hardware for houses and stone for riprapping, and things of that kind, but we do not carry freight for commercial purposes. There are freight boats on the canal owned by private parties. The canal then, admits of freight boats by any- body that wants to come on it; entirely free to all persons, of course complying with my regulations. There are a number of freight boats owned by private parties that are now operating upon the canal. 4400 I have no military title. A transportation company has been organized and they are getting together a fleet of steamboats and barges. They have con- structed one barge 24 feet in width, 120 feet long, and 9 feet depth of hold, for the purpose of carrying grain. I think they esti- mated the capacity at 20,000 bushels. Of course it cannot be 4401 loaded to the full depth of the hold carrying grain. But a vessel may be deeper in its depth of hold than the depth of water it operates in — always is. So that the fact that a boat was recorded as nine feet depth would not mean that it needed nine feet of water to run in. They have purchased and fitted up one steam barge, the City 1273 of Henry, which is a barge about 100 feet long and 18 feet wide, adapted to carrying grain or coal in its hold. They have pur- chased a small stern wheel steamboat, the Beder, from the Mis- sissippi Kiver, and equipped her for towing. TTiey have 4402 built or rebuilt one pleasure barge for excursion imrposes, which I suppose is about 100 feet by 20 with a carrying ca- pacity, as they state, of 200 persons. They have another barge on the way of somewhat smaller dimensions, and I do not know the purpose for which fhat is to be used. There is another steam- boat there that has come in for carrying excursions which is about 50 feet long, by perhaps 16 feet wide, more of a lake model, not a flat bottom boat. All along the canal they are getting in a large number of gasoline pleasure boats, launches. Q. Have you given the figures on the smallest size of freighter or would the launch that you describe as the property of the United States perhaps be about the smallest of the freighters? A. That launch I am using to tow barges which I am building, through the feeder on the main line. A small boat can handle them. Q. Would that be perhaps a type of the smallest form of freighter or perhaps you have some still smaller in mind? A. No, I would hardly call that boat a freighter. She does do towing, but she was built for pleasure purposes originally. Q. But you are in fact using her for freight purposes? A. Yes, sir, towing purposes. Q. What I asked you was whether you had in mind a freighter of still smaller dimensions? 4403 Counsel for Defendant. One moment now, he does not say it is a freighter. He said for towing purposes. Towing is not freighting. Counsel for Complainant. The captain and I will get along all right. Counsel for Defendant. Yes, I haven’t any doubt of it. CouuNSEL FOR COMPLAINANT. I will get aloug witli the captain. The Court. That hardly disposes of the objection, though. Counsel for Complainant. The objection is to a comment by counsel a criticism on language that has passed. 1274 Wheeler, — Cross-Exa m . — Con t inu ed. Counsel fok Defendant. Yes, really only the second objection I have made this morning, and I will withdraw that. The Witness. I wonld not call that launch a freighter. We do not load freight into her to any extent, but she does do tow- ing; also does miscellaneous errands and traveling on the canal. She is not a type that would be built for freight purposes on the canal or upon any other waters. Q. Now, you may tell us whether you have in mind any smaller freighter than the dimensions of this towing launch to which you have referred? Counsel for Defendant. I object to the question. The Court. He may answer that. A. I haven’t any boat in mind. 4404 I would not say that this was the ,first fleet I have had charge of. I have had other fleets. Oh, I would hardly call it a fleet. I had a steamboat and a dredge and some dumping scows doing dredging at one time, and traveled a little on the Mississippi Eiver with the boats under my control. I mean to say that at one time I had charge of a dredging fleet in connection with this same canal, the Hennepin Canal at its western entrance. That is what I would call a construction fleet. I also had some work in connection in the earlier years down on the Mississippi Eiver. I have described it as having charge of large sur- 4405 veys. I say I had charge of large surveys in the field, and had occasion to use steamboats and other boats, lived on quarter boats during this operation, during the progress of the surveys, and had some difficulties in navigation which I remem- ber quite distinctly, at several places on the Mississippi, one place a short ' distance above Natchez, for instance. I went ashore amongst snags and floundered about the drift there for twelve hours and looked to be in a pretty bad case. I had two boats and a steam launch, and they went ashore together. The launch ex- tricated itself, but the boats were fast, and in the night I suc- ceeded in getting assistance from Natchez to pull the boats 4406 out. That was in the spring of 1883. IVell, it is like other boats that go ashore. They usually do not go from desire of those navigating them, but because they cannot help them- 1275 selves. It was one of the inherent difficulties of the situation there. One of the difficulties was that I had not sufficient motive power to control the boat which I had there in the high wind which set up after I got loose from the shore above. The wind would drive us on the bank. Well, I ran ashore on sand bars several times, against snags, and to the shore several times when I did not want to go there; nothing else. That is, the encountering of sand bars and snags and obstacles lying in the river, or being driven upon obstacles on the bank, and by storms on the water also. Those were the principal difficulties. 4408 Thereupon counsel for defendant at request of counsel for complainant pursuant to stipulation heretofore agreed upon, read in evidence from page 40 of the report of 1890 in connection with the passage and read by counsel for defendant from said book and page: 4410 ‘^Starting from Bridgeport, the Illinois and Michigan Canal was constructed in a straight line to the Desplaines Valley at Summit. As originally constructed, the canal had a summit level, a lock having been built at Bridgeport and one at one-half mile south of Borneo, this summit level being supplied originally by the Calumet feeder. The drainage area of the Chicago River is about 270 miles, and the natural dry weather flow practically nothing. The sewage of the city is discharged mainly to the river and it early became necessary to provide some means of getting rid of it other than permitting it to escape to the lake when the flow was sufficient to carry it there. For a while pumps were operated at Bridgeport which pumped the water and sewage into the summit level of the canal. Subsequently the city deepened the canal to six feet below low water of 1847 in Lake Michigan which is Chicago City datum. This gave only tem- porary -relief. The low water surface of the Desplaines River at Summit is eight feet above Chicago datum, and high water rises seven feet higher. The canal does not enter the bed of the river, except at one place where the river was diverted 4411 for the purpose, but run along the eastern bank of the river, the water of the river being prevented from coming into the canal by the spoil banks. The material in which the canal was excavated varies from clay at Bridgeport to gravel and boulders at Willow Springs. The surface of the ground varies from eight to fourteen feet above Chicago datum. In many places under the headwater in the river and the drainage of the adjacent lands, the nar- row deep cut was unable to maintain the slope of its sides. 1276 U. S. Eng. Rep. 1890^ p. 40, — Continued. which ‘are said to have been cut at the slope of one to one, and soon the canal became obstructed by the falling of its banks, and the flow was insufficient to carry oft and properly dilute the sewage. The flow from the lake was also dimin- ished by the water which came from the river through the permeable soil, and by the natural drainage on the east side of the canal. Pumping works and a lock were then constructed at Bridgeport, and wmter pumped from the river into the canal. The lift of the rocks vary from one to three feet. The ca- pacity of these pumps is said to be 1,000 cubic feet per sec- ond and the amount pumped is from about one-half to three- fourths that quantity. This produces a feeble current up the south branch from the north branch, and the lake when 4412 the natural flow and sewage combined does not exceed the capacity of the pumps. The south fork, however, is left in an indescribable condition of filth and offensiveness. The west fork originally did not extend beyond Kedzie avenue, but by that construction of ditches and other causes it may now be said to have its source in the Desplaines River near Summit. The upper part of its course is known as the Ogden ditch. The ground along the west fork is generally lower than along the canal, the low ground along part of its course being known as Mud Lake Valley. The Mud Lake Valley was originally separated from the Desplaines River by a low bank raised probably bv the river itself. This bank was cut and the city has since been engaged in an effort to prevent the water of the Desplaines River coming down the west fork and carrying the sewage into the lake. A dam, known as the Ogden Dam. has been built near Summit across the Ogden ditch, where it leaves the Des- plaines River, the crest being about 11 feet above city datum. The floods come over the dam, and over the adjacent banks, and flow out to the lake through the Chicago River, carry- ing with it accumulated sewage which the feeble current created by the pumps have not been able to remove. The canal drains the country south and east of it, and when the amount of storm water is large, it overtops the lock gates at Bridgeport, which are then opened and the flood flows 4413 out to the lake through the river. The Cit}" of Chicago takes its water supply from Lake Michigan near the mouth of the Chicago River, and the purity of the water supply is threatened by the sewage carried into the lake. The city is now proposing to dig a large drainage canal along the Chi- cago route for the purpose of carrying its sewage down the Desplaines and Illinois rivers. The pro]:)osed waterway between Bridgeport and Summit could follow the line of the present canal, the west fork and Ogden ditch, or a line intermediate between the two, but it 1277 is necessary to. take into account the local conditions and to provide for preventing the waters of Desplaines liiver going to Lake Michigan through the Chicago or Calumet Livers carrying with them the sewage of the City of Chicago. From' Summit to Sag bridge the j)roposed route follows the valley of the Desplaines Liver, which is from one-half to three-fourths mile wide, entering the bed of the river about three miles below Summit. The river from Summit to below Sag bridge varies greatly in width and depth. This portion of the river is known as the 12-mile level. The low water flow of the river above Summit is very small, and the maximum measured high water discharge about 10,000 cubic feet per second. At low water the entire flow passes in part through the Ogden ditch, but the greater ]:>ortion into the canal through the ])ermeable soil separating them.” 4414 Adam Comstock, a witness for defendant, testified as follows: Direct Examination, My name is Adam Comstock. I am the same Adam Comstock who has already given a deposition in this case. Q. Mr. Comstock, in this case certain witnesses have testi- fied that there was a road in 1858 or 1855 which branched off 4415 from the Brandon’s road and ran to the water’s edge, and that this road was deeply rutted. Do you know about that roadi A. Yes, sir; there, is a little island marked on the plat there. Counsel for Defendant. The witness refers to "VYoerman’s Exhibit 4. A. It is opposite a point that is marked 118 feet wide there^ there is a little island there, where counsel for complainant has just placed a cross. Well, the earliest days there was a ford just below that little island and a road. There was a public road for many years until the bridge was built; when the bridge was built that point was abandoned. There was not ever any landing place at that point. Counsel for Defendant. Where was your farm with reference to the position of that road? A. That what? 1278 Comstock, — Direct Exam. — Continued. Q. Where was your farm with reference to the position of that road! A. I don’t just get that. Q. Where was your farm on which you lived — A. Oh, the 4416 farm! We lived five miles down the river from Joliet. This road is about a mile and a half south from Joliet, it run from the Brandon bridge down to the ford just below the island. We lived on the farm there from 1837 to 1841, and then in Joliet after that. My father owned land along the river other than that on which we lived. In 1845 he bought a piece of about forty acres of land where the Adler slaughter house is. It is right within a quarter of a mile of this road. He owned that land up to 1860, some time in the ’60 ’s. When we moved to Joliet we got our fire wood off from the farm, so that we were going back- wards and forwards frequently, and we got our hay otf from the farm up to 1845. Then we bought this 40 acres at the head 4417 of the lake and we got our hay otf from that after that. In going backward and forward between the farm and Joliet we passed this road. The road branched otf at Brandon’s bridge. The road to the farm run for about three miles and a half right in sight of the river. Counsel fok Defendant. Mr. Starr, at one stage in the case certain plats purporting to show town sites were referred to and my recollection is we made some objection on the ground that there never had been any town, and my recollection is that we were to iiiake some selection from them and take the matter up afterwards. Thereupon follows an extended colloquy between counsel as to whether said plats had been admitted. 4422 The Coukt. You may assume that they are in. Said plats offered and introduced in connection with the deposition of Eobert E. Orr and marked respectively Complain- ant’s Exhibit A-1 to A-12 were thereupon received in evidence and are set out in the Atlas of Maps, Plats and Charts of this Certifi- cate of Evidence as follows : Complainant’s Exhibit A-1 (Atlas, p. 3929; Trans., p. 6527; Abst., p. 1920). 1279 Complainant’s Exhibit A-2 (Atlas, p. 3930; Trans., p. 6529; Abst., p. 1920). Complainant’s Exhibit A-3 (Atlas, p. 3931; Trans., p. 6531; Abst., p. 1920). Complainant’s Exhibit A-4 (Atlas, p. 3932; Trans., p. 6533; Abst., p. 1920). Complainant’s Exhibit A-5 (Atlas, p. 3933; Trans., p. 6535; Abst., p. 1921). Complainant’s Exhibit A-6 (Atlas, p. 3934; Trans., p. 6537; Abst., p. 1921). Complainant’s Exhibit A-7 (Atlas, p. 3935; Trans., p. 6539; Abst., p. 1921). Complainant’s Exhibit A-8 (Atlas, p. 3936; Trans., p. 6541; Abst., p. 1921). Complainant’s Exhibit A-9 (Atlas, p. 3937; Trans., p. 6543; Abst., p. 1921). Complainant’s Exhibit A-10 (Atlas, p. 3938; Trans., p. 6545; Abst., p. 1921). Complainant’s Exhibit A-11 (Atlas, p. 3939; Trans., p. 6547; Abst., p. 1922). Complainant’s Exhibit A-12 (Atlas, p. 3940; Trans., p. 6549; Abst., 1922). 4423 Counsel foe Defendant. Then I move to strike them out as being immaterial. I think that is a motion that could be made at any time, even though the court has admitted evi- dence, if it becomes clear to the court that the evidence of it ought not be admitted, it should be stricken out. • Counsel foe Complainant. I am willing the court should pass on them. The CouET. I will let them stay in, on the theory that the par- ties may have thought that there was a possibility of putting some towns up there, for whatever they may have been worth. I confess they may not be worth very much, but it is a subject for argument. 4424 Thereupon counsel for defendant called attention espe- cially to Complainant’s Exhibit A-1, which was a certified 1280 Comstock, — Direct Exam.— Continued. copy of the map of Beard’s part, and a part of Handy’s part, in the Town of Kankakee, laid out between the mouth of the Kankakee and the 0 ’Plain Eivers, on Section 36, Township 34, North, Eange 8, East. 4425 Counsel for complainant admitted that the town never was built. 4426 Thereupon the witness, Mr. Comstock, further testified: My business is that of a surveyor, and I have followed that business right along since about 1849 and am still following that profession. I will be eighty years old next September. There was never anything done as to the building of the Town of Buffalo on the northwest quarter of Section 2, in Township 34, North of Eange 9, East, in Will County. I know the place. 4427 Eeferring to Exhibit A-7, the plat of Vienna, recorded Sep- tember 19, 1835, there never was any town built known as Vienna; there never was any house there at all. 4428 Cross-Examination. I know A¥. W. Stevens of Joliet. I remember having a con- versation with him at his office last fall or winter. Q. Bo you remember his remarking to you, ‘‘Adams, I don’t understand how they ever got those large boats up over the rapids at Treat’s Island?” A. Yes, I know w^e used to talk about that. Q. Did you reply to him on that occasion, ‘ ‘ They warped them up?” A. No, I said that they, that, that the matter was simply adopted to get up rapids or down them as they call it, run out a long rope and hitch it to a tree and then stand on the boat and pull on the rope. That is called cordelling. 4430 The residue of witness’ testimony was all stricken out, not being responsive to question. 1281 4432 D. W. Mead, a witness for defendant, further testified as follows : Direct Examination, Q. You are the same Mr. Mead who has heretofore testified in this case? A. I am. Q. Mr. Mead, some reference has been made to the earthen dam connecting the towpath bank with the proposed concrete portion of the work of the Economy Light & Power Company near Dresden Heights, as to the specifications for the dimensions of that bank as compared to the dimensions of the towpath bank. Will you state whether the necessary dimensions of the towpath bank to maintain the pool to be raised by this work bear any rela- tion to the dimensions of the earthen bank at this place? (To which counsel for complainant objected on the ground that the evidence was incompetent, irrelevant and immate- rial.) 4434 The Court. You may answer. A. None whatever. 4435 Counsel for Defendant. Why? A. The bank connecting the power house, proposed power house with the towpath embankment is designed to meet the con- ditions at that place, which are very different from those obtaining in the case of the towpath embankment. The embankment between the power house and the towpath is a part of the main dam. It is or was designed with several matters in view, the one of them was the quality and quantity of earth available. Another, the use to which the bank was to be put, as a roadway, and yardway, or yard for the power plant; and, third, the condition of the waters in relation to the bank. In the first place, the embankment was built from the strippings over the site of the tail race, of which there was a considerable amount and we had to waste this material, consequently the embankment was made ample in dimensions 4436 and more than would have probably been utilized if an in- sufficient amount of material had been readily available. I mean insufficient to make a bank of that dimensions. The bank 1282 Mead, — Direct Exam. — Continued. connecting the towpatli with the embankment is to be used to transfer the machinery which will be placed in the power house from the boats in which they are expected to reach the irnmediate site to the power house. It is about the only space that we have available to place the material that is to be used in the power house, and for which we are not immediately ready. The embank- ment close to the power house was made 24 feet in width, parallel with or perpendicular to the power house in order to give room for the turning of the teams as well as the storing of supplies temporarily, which is the reason of the width given to the top of the embankment. The contingencies of the condition are these : that during low water and high head there will be a difference of elevation on the two sides of the embankment, of 16 feet or more, according to the conditions of operation. This, during high water periods, will be considerably less, but the result of any injury to this embankment would be very much more serious to the opera- tion of the plant than would any accident to the canal embank- ment. On account of the difference in head under most condi- tions, the development of a weakness in this main embank- 4437 ment would mean the concentration of flow in this immediate V vicinity and the entire destruction of the embankment. Not only that, but if the river should cut through at this point, the velocity of the waters and the old pond of water back of it, giving both velocity and quantity, would be apt to very seriously affect the canal embankment at that point. For these reasons we make the embankment adequate without question to withstand the con- ditions as we will find them during operations. The old bank is much more stable than the new bank, if I may answer, stable and compact, less liable to contingencies. It gets old and tough. 4438 As to what provision I have made for the support of the pool on its other side? Counsel eok Complainant. Pardon me. What is that? (Question read by the reporter.) Counsel for Complainant. You mean across the river? Counsel for Defendant. Yes. Counsel for Complainant. On the opposite side of the canal? 1283 Counsel for Defendant, Yes, sir. Counsel for Complainant. Across tlie river. Counsel for Defendant, Yes, sir. Counsel for Complainant. I don’t think I care anything about that. Counsel for Defendant. I think I care. They are showing what this engineer would have done by what he did with the earthen part of the main dam. You have got the same condi- tion on the other side, and I want to show what he did there. Counsel for Complainant. As the other side is not involved in any way in this strip — (Question read by the reporter.) Counsel for Defendant. On the other side of the river. If these gentlemen will agree that they do not intend to draw any inference as to what this engineer thought was necessary to sup- port that pool from the dimensions that he gave to the earthen bank connecting the bank, very well ; but we are out of the 4439 realm of inferences if we show that he had the same situa- tion to treat on the other side and made the same pro- visions. 4440 The Witness. The levee is to be constructed just north of Eiley Creek, following the southern bank of the river to the south end of the proposed dam. It will run about two miles. It will sustain the pool partially at its lower end during low water conditions, and for its full length during high water conditions. The proposed levee is 10 feet in breadth on top, with a slope of 2 to I on each side. Well, it varies in height, ac- cording to the condition of the ground over which it is built. The top is on a level with the proposed elevation of the tow-path. The bottom conforms to the surface of the ground over which it is built. I do not just recall the variations in height, although 4441 that can be seen very readily from the map. About 16 feet is the maximum, and it varies from that to almost nothing at certain points, certain high points in the line of the level. The width, however, is uniform, and the height is at the proposed height of the tow.-path on the other side of the stream. There are several smaller levees further up stream. 1284 Mead, — Direct Exam. — Continued. Counsel fok Complainant. The witness is referring to another plat. The Court. Well, he is referring to them simply for the pur- pose of refreshing his recollection. Of course, if they are orig- inal plans, or blue prints, you may look at them for the purpose of cros^-examination. The Witness. I don’t know that I could say that this one I refer to is the most important one, hut this one, there is 4442 one in the neighborhood of the highway, north of Smith’s bridge, part of which sustains the roadway, and the balance of which protects certain farm properties. The length of that levee is about a mile and a half, and its dimensions otherwise — the levee for the protection of the prop- erty is 6 feet on top with a slope of 2 to 1. That for the road- way is 18 on top and slope of 2 to 1. The roadway is on that levee. These two levees that I refer to are on the other side of the river. I think I will have to correct that. The levees last referred to, north of Smith’s bridge, would, of course, he on the canal side, hut considerable above and away from the canal. The material it is designed to he composed of is the material that will he 4443 excavated on the adjacent side, of the land adjacent to the site. There is a good deal of gravel, sand and some clay, but not as much as I would like. The quality of that material for such use compared with that of which the towpath bank is tilled is very much inferior. In the remaining two levees that I have testified to, to he built, there is more or less sand and gravel, hut more clay on those north of the Desplaines than those south. A better class of material than the main levee on the south side of the Desplaines Eiver. It is designed to riprap those levees in places only. There is no rip-rap shown on the plans, only it is expected that wherever it is necessary they will he riprapped. It is not expected that they will he paved. Cross-Examination. Q. That portion of the dam that was built of earth and about which you have spoken. Professor, how was that constructed? To direct your mind into the channel I want it to go, as to the point I want, did you construct it in layers? A. Yes, sir; so far as we were able to. 4444 I don’t think there was any rolling done there. I think the teams were operated so that they would compact the ground as far as possible. I don’t recall that we placed a roller on the embankment, although that may have been done. I would not be positive of that. The specification called for it to be rolled or compacted. The driving of team's and wagons had that effect of rolling if properly done. Q. You think it did! A. I think the bank was made. Q. Did you wet them and make them settle and become com- pacted! A. That was all that was needed in the material that was brought on there. Eather more moist than we cared to have it. I don’t think any artificial water was used there. It was not necessary anyway. As to rip-rapping this part of the bank, there might have been some stones placed there. I think there has been. In fact I know there has been no attempt to finish the embankment. It is contemplated to finish the embankment; yes, sir. We expect to rip-rap a portion of it. 4445 I am not referring to the long bank, up and down the river, I mean this little part of the dam. I intend to rip- rap that part of it. As to the plans and specifications calling for rip-rapping for all of it on both sides, up and down, I would not be positive in regard to rip-rapping the upper portion on the lower side. I know the lower portion of the lower side, and all of the upper side is intended to be rip-rapped. In speaking of the lower portion of the lower side, I have in mind the portion of the embankment that would be under moderately high water. That would feel the effect of wave wash or high water, hardly half of it; I would say the lower third, as I recall it. I am not clear at this moment, without having the specifications before me, as to whether they call for rip-rapping the entire lower side of it 4446 or not. I do not keep all of those details in mind. As to whether the specifications call for the upper part of this portion of the dam to be paved, my recollection is that we propose to put a course of rubble, or instead of throwing the stone loosely, to place it into a rough pavement; I believe that is shown in 1286 M ead, — Direct Exam,— Continued. that way on the drawing. The bank immediately joining the river on both sides of the river at least closely joining the dam is quite low and flat, and I think the water rises and overflows both at about the same time. I think there are places adjoining 4447 the towpath where the bank is more abrupt in some places. The towpath slopes down at a considerable angle and then strikes the ground, and gradually slopes to the water. On the other side the level will be placed some distance back from the river’s edge, and in places there will be practically no water at all on it during ordinary stages. There are other places where we will have from 7 to 9 feet during ordinary stages of water, and 5 feet additional during high stages of water. I don’t know any place where there is any 23 feet of water on the canal side. I know a place where it is 18 feet. The crest of the dam is 18 feet. I think there are places where there are 18 feet from the toe of the slope on the canal bank to the top of the bank, 4448 but then there is not that quantity of water against it. In flood time, large flood time, which occurs practically every spring, the water would run over the top of this dam that we are building, 4, 5 or 6 feet. I mean the earth dam. It will go over in extreme floods as high as 7 feet. It would give us 25 feet over the foundation of the dam. The 17 or 18 feet that I mention is the height of the dam, and the 7 feet above it, which would make about 25 feet, is the height of the water during times of flood over the bottom of the dam itself. When you go over where the embankment is, the bottom of the embankment is not 4449 down to the bed of the river by any means. It is up on the bank of the river, and it is considerably above the ordinary stage of water in the river. I should think in the maximum place, there might be as high as 16 feet of water that may be said to be against the outer slope of the canal bank. Q. On the other you gave over very little, if any, part of the same places, and some other places, some 9 to how many feet did you say. Professor! A. Nine to about — Counsel for Complainant. I think you said 5 feet farther, 14. A. AVell, 13 to 14, about that. The Court. When you say 16, you mean in flood times! 1287 A. Yes, sir; in extreme flood time. Q. How high is that tow-path when it is improved, 18! A. Well, it would he al)ont 2 feet above extreme flood. 4450 Counsel for Complainant. Gentlemen, will yon kindly let the Professor take them! And tell ns. Professor, whether or not the specifications call for riprapping on both sides of this part of the dam, and on the upper side — well, I think yon have said what yon memory is on the ii])per side. A. The specifications state that the slo]ies are to he ]iaved. Q. Both sides, njD and down, or jnst the upper side! A. It simply says the slopes of the embankment, hut T think the plans will probably show that more clearly than the specifications. 4451 On top of it, there is to he a roadway made. Macadam sur- face, I think, covers this. There shall he a top layer of broken limestone, which shall he 6 inches in thickness after being completed. The macadam roadway to be built from the tow-path, over the towpath out to tlie plant. This hank that 1 put in constitutes this earthen part of the dam, provided in the speci- fications, being paved as it is provided to he done, and the size that I have made it, is not a very much stronger hank than the towpath hank of the canal; I do not consider that it is. Xot 4452 whemyou consider the contingencies of the location. There is more dirt in it. I don’t know that it is stronger, or weaker, except in connection with what it is intended to stand. At least, I may not get the drift of your question. There are elements that are stronger, and there are elements that are weaker in it. The Court. Take it this way: if they were both subjected to the same conditions, the question is whether the one that forms part of your hank would sustain more than the one which is a part of the towpath bank would stand. 4453 Counsel for Complainant. Please answer that question. A. As I understand it, I think it would. It is 16 feet on top against 12 feet on the towpath. Part of the way, it was 24 feet, adjacent to the power house, that is, crossways of the bank. This dam, as I have provided it here, in the dimensions I have provided it, is larger and bigger, hut not stronger, than the 1288 Mead, — Cross-Exam. — Continued. towpath bank. It might stand greater pressure without 4454 giving way than the old hank. I think I would rather risk the older bank. I doubt if that would, if there would be any difference. The bank is thicker, and wider, heavier at the bottom, but it is new, which is very much against it, and I think the old- ness of the one case would at least off-set the newness of the other. I understand the old bank is rip-rapped at present. I have started to say that the towpath bank was intended to have 4455 it riprapped as altered on the side next to the pool we are forming. I don’t think the rip-rapping holds it in place. 1 thing the rip-rap is placed there simply to protect it against, abrasions from water, and drift from wave wash. The strength of the dam is partially in its weight, when you have it rip-rapped to hold it in place. It must be practically impervious, that is the main feature. It must be heavy enough to resist pres- sure, and must be practically impervious, or if not impervious, it must be to such an extent that the passage of water through it will not injure it. I said the other day, I think, that there is nothing impervious to water, in point of fact. I said that I was building this day out of clay and stuff that was taken up there; that I re- garded that as very excellent material. Its bulk when you 4456 protect it, to keep its place by the rip-rapping, is one of the very important elements. The question of the method of construction, and the question of the foundation, and the question of the immediate condition sur- rounding the construction, the attachment on the one hand on the towpath embankment, and the other one the concrete, those 4457 are the places of weakness we have to look after more care- fully. The foundation comparatively few feet below the natural ground is rock. It is covered with more or less gravel. The line of contact between the rock and the gravel is apt to be a point where seepage will take place unless great care is taken in the construction. So that that is one point that we have to take into consideration, and cut off the water so that it will not pass along between the gravel and rock, or through the gravel itself. AVe do put something in there other than the body of the bank to pre- vent that seeping in this construction. AYe put concrete in. I 1289 believe I mentioned the line of contact of the embankment 4458 with both the canal embankment on the one side and other. Those are points that unless they are properly handled to prevent the flow along through it — We took the paving away frona the surface so as to allow the breakage of the surface, and saw that the new bank knit into the material of the old bank properly. The same thing was done in connection with the natural surface of the ground. All of the organic material, bushes or trees, or the roots of trees were very carefully taken out. Any sod, or organic matter of any kind was removed. The whole surface was broken up so as to avoid a leakage plane at that point. In other words, to knit the embank- ment itself to the natural soil. All of those things are features that must be taken into account in the strength of an embankment, and have considerable to do with the design of that em- bankment. 4459 I didn’t know that I had mentioned the inside of the canal to-day. I think I said before that it was rip-rapped, when I was on the stand a week ago or so, on the outside. The inside of that embankment of the towpath is rip-rapped, I don’t know how far along. I have examined it in a good many places along there, for a thousand feet or so, and it is riprapped up to about the water side of the surface. Q. Isn’t this the truth about it; that it is not riprapped at all, except where there was a break, or signs of a break, and in the maintenance of the canal, they rip-rapped a few feet, or so; isn’t that so? A. I couldn’t say. 4460 Thereupon counsel for complainant handed to witness plat marked 1556,” which was a part of the specifications for building the dam, and asked him to give the actual dimen- sions. The earthen dam, between the proposed power house and the tow-path embankment is 16 feet on top and has a slope of 2^ to 1 on the up stream surface, three to 1 on the upper por- 4461 tion of the lower side, then the tow of the slope is carried out on 4 to 1 slope on lower side. Its maximum height is about 24 feet. It slopes from that to considerable less at the canal 1290 Mead, — Cross-Exam. — Continued. bank. It was intended to carry it clear down to the rock bottom, but we found the rock somewhat lower than is shown on the plans, and so had to go a little deeper to get it. The embankment rested there, but the concrete wall that I have mentioned was brought from the wall up to that point. Tlie concrete core is not in the earthen embankment proper. It is below that. It is from the rock up to the natural earth surface, or a little above. I think would come up about a foot into the embanlnnent. The height of that concrete core from its bottom, I would have to give very approximately. I saw it but made no personal measurement. I should say in places it was six, or possibly eight feet, from 4462 18 inches, to 2 feet, 24 inches thick. That goes the entire length of the earthen bank. I thing the concrete is perhaps 175 feet long, or thereabouts. Q. Now, Professor, if you will answer me one more question, I think I am through. Will you now make comparison and tell us the comparative size of a lineal foot of this earthen embank- ment in its length with a lineal foot of the tow-path, say 4463 1,000 feet above this dam! A. I could not calcuate it in a moment, not to say. I would have to run over it. Q. How long would it take you! iV. Ten or fifteen minutes, perhaps. Q. I don’t ask the court to take the time, but in the meantime will you make your answer, and then put it in afterwards! A Yes, sir. Re-direct Examination . 4464 This 1,000 feet I examined in perhaps a half dozen places, a thousand feet, I should say, above the site. There was rip- rapping in all of the points which I examined. 4465 Re-cross Examination. I could not see the rip-rapping, I could feel it with a pole, saw it in places, in all the half dozen places I examined it. I don’t know that I could say that I saw it, but I am satisfied it was there from my examination. You can see possibly, I think, six inches, or to a foot, but I don’t think you can see two feet anywhere in there, that I have seen. I didn’t see the stone at all the places. 1291 where I found the stone to he. In some places I was endeavor- ing to find out how far down the stone went and made this 4466 examination down below the surface of the riprap. I was trying to find out how far down they went, down into the water I mean, down from the edge of the little berm that lies inside of the canal next to the tow-path, and the bottom of the canal. I was examining particularly in regard to that berm, its extent and where the stone lay, and how far down it ran. I saw the stone on top in a great many places. I would not say that I could not — I would not say that I found it in all places on top. I presume I could, hut I do not recall. It is my recollection that in all places that I examined I saw the stone on top^ but I would not swear that is true. In a distance of 1,000 feet, or thereabouts, I think I examined half a dozen places and more. Every place I looked I could see stone, subject to the modification that 4467 I have already made to that statement. There were some places that I made no particular soundings, and saw the stones, but I don’t speak of as having examined, hut at those places it went clear down to the slope on the inside of the canal. My stick was long enough to reach five or six feet under the slope and determine it. Thereupon counsel for defendant called up the deposition of L. S. Conant, a witness for the complainant. (For rulings on same see Abstract of Depositions, infra, p. 495.) 4468 Thereupon counsel for defendant called attention to cer- tain alleged errors in the deposition of Mr. Hey worth. For rulings on same see Abstract of Deposition, infra, p. 371.) 4470 JoHX M. Snyder^ a witness for deTendant, testified as follows : Direct Examination. My name is John M. Snyder. I am acting secretary and chief clerk of the Illinois and Michigan Canal. I have al- 4471 ready given a deposition in this case. I have charge of the books, records, and other documents belonging to the Illinois 1292 Snyder, — Direct Exam. — Continued. and Michigan Canal. There is among those books one showing the lands of the canal, npon which the lands were deeded and sold. This document that is now handed me is a photograph of one of the pages of what we call the land sale hook, although it may not he designated on the back of the book. (Atlas, page 3979; trans., p. 6632; Abst., p. 1934.) Counsel for Complainant. Photograph of what? Counsel for Defendant. Photograph of one of the pages of what they call the land sales hook. That is the hook according to which the lands were sold? A. The lands were sold originally; yes, sir. Q. Do you know whether that is a correct photograph? A. Yes, sir. Q. Were you there when that was made? A. Yes, sir. Counsel for defendant offered the sheet in evidence. Counsel for complainant objected to it on the ground the pho- tograph is not competent evidence and that it is not shown 4472 to he relevant or competent or material in any point of view, if the original were here. Thereupon counsel for defendant offered to have the same plat certified to and contended it was admissible on the subject of meander line. 4476 The Court. The map may go in solely in reference to the meander line. Counsel for Complainant. We object to it from that stand- point, as well as the other. The Court. Overruled. Everything that appears on the map, on the photograph, ap- pears upon the book from which it was taken, all those figures and all that appear on the original map, and all the records. That writing has been there ever since I have been connected with it. I have been connected with the office between four and five years. Thereupon objection was made by counsel for complainant that it was not admissible for any purpose. 1293 Whereupon the said map was admitted in evidence and marked Snyder Exhibit A (Atlas, p. 3979; Trans., p. 6632; Abst., p. 1934.) 4477 D. W. Mead, a witness for defendant, further testified as follows, in ref- erence to the figures he was not able to state on his prior exam- ination : The main embankment leading from the power house to the canal bank, at the deepest section, strikes ground surface at 66. At the other end at 72. I have calculated both points so as to give you the relative cross section at both points. The maximum cross 'section one foot in width, a foot taken right through the embank- ment. One foot in width, the deepest place would be 1634 cubic feet. At the other end where it is 72, it would be 914 feet. It varies between those two. The canal embankment, I took at the point where it was 18 feet in height, 12 feet in width, two to one on both sides, but only carried it down half way to a level line on the inside because I did not know just where the natural surface could be and I tried to allow for it in that way. Figur- ing the cross section on that basis, I find in that canal embank- 4478 ment, one foot section, we have 702 cubic feet. The height of the canal bank is in one case 22 feet, and in the other 16 feet. Mr. Snyder being recalled as a witness, counsel for defendant then offered the report of the Canal Trustees, title page: Com- plete list of the lots and lands conveyed by the trustees of the Illi- nois and Michigan Canal, showing size of lots, appraisal sales, from September, 1848, to May, 1849, names of purchasers, etc., compiled by our Board, February 15, 1850, Chicago, printed at the Democrat office, 45 La Salle street, steam presses, 1850.’’ And on page 5, Eoman letters, if it were paged; it is the first page after the table of contents, down to sales made by trustees, that would be the 5, Koman page, on down to sales made by trustees, on the sixth Eoman page. 4479 Thereupon the court heard argument upon the admissi- bility of the portion of the book so offered. 1294 Synder, — Direct Exam. — Continued. 4480 The Couet. It may go in, reserving the right to strike it out. I reserve the decision on the motion to strike out. This ruling will apply to all that sort of matter. Counsel for Defendant. You have heard read the first page and a half, and I think you have it there, have you not, if not you can copy it from the book (addressing the reporter). The Court. I confess I have not got it myself — I have not got the point of the first two pages, unless it be the amount of acreage that is mentioned. Counsel for Defendant. The first page refers to sections of the Act of 1843, and speaks of the conditions under which the trustees are to sell and convey the property. I also offer on page 7, Eoman figures, ‘^Chicago,’’ for the purpose of showing that at the date of the publication of this book there was still considerable land in odd sections remaining unsold in the City of Chicago. Counsel for Complainant. I object to that, your Honor, simp- ly a sale of the lots here in Chicago, and cannot by any possi- bility be competent. Counsel for Defendant. I will state that I expect to show further that a considerable number of these lots, were lots upon the Chicago Eiver, and vicinity that were sold after 1839, and no reservation made, unless it be in the statute itself, of any part of the river bed itself. The Court. That may go in for that purpose, subject to the same reservation. . Counsel for Complainant. I object to it as irrelevant, incom- pentent and immaterial. Said portion of said document was received and read in evi- dence as follows: 4481 ^‘Chicago: The whole number of lots, and out-lots in Chicago and vi- cinity, prepared for sale by the trustees, was 1478; and the valuation tliereof $627,528. Of these lots 998 have been sold; and there remain unsold 579; of which 230 are at present held from sale by injunction; — embracing now all unsold in 1295 blocks 4 and 7, original town, and section 1721 and 29 E. 39, R. 14, East. In the immediate vicinity of the railroads, there is still un- sold a large number of very eligible lots ; and in the lower part of fractional section 15, quite a quantity equally desir- able, so that it may be seen that the property in and about Chicago hereafter to be sold is of the most valuable and at- tractive character, whether it be wanted for occupation or permanent investment.” Counsel for Defendant. Joliet, a similar paragra]3h on page 9, about this town of Joliet. ‘‘Joliet: About this town, the trustees prepared 456 lots for sale, which were appraised at $10,885. Of this number 242 have been sold, leaving unsold 214, all of which are very well sit- uated, and worth greatly more than the appraisal.” 4482 Counsel for Complainant. I object to that, your Honor, there isn’t any evidence that any of them bordered on this river, and if they did, it would not be material. The Court. As I understand it, that is to be followed up by — they can put it all in at once at this time. Counsel for Complainant. The objection is that it is irrele- vant, incompetent and immaterial. The Court. Your objection may stand to all of this kind of material. Go on with the rest and move to strike it all out. Page 12 : “Lands. The Canal Lands, it is well known, include the odd num- bered sections embraced in a strip averaging about ten miles in width, lying on both sides of the canal, and extending from the commencement of Lake Michigan to its termination on the Illinois River; a distance of nearly 100 miles. They also include, as far as they continue, the rich valleys of the Des- plaines and Illinois Rivers, and the heavy bodies of timbers 4483 along their borders. In point of location, health, fertility and adaptation to general farming purposes, these lands are certainly unsurpassed by any of the west. Unlike most prairie districts, they are generally well sup- plied with timber and water; and throughout the westerly half, coal abounds in a characteristic quantity. Water power is likewise abundant, as well as lime and sandstone of good and useful quality. All told, there are some 173,000 acres 1296 Canal Cofii. Rep. of Lots Sold — Continued. and in this quantity more than 30,000 acres is very good tim- ber, which, for the accommodation of farmers will hereafter he offered for sale in forties. The land is situated in Cook, Will, Grundy and La Salle Counties, and occupies the central and more valuable parts. Cook County contains much the largest population of any in the State, and Will and La Salle are among the most populous and wealthy, while Grundy, in agricultural re- sources, is inferior to none. Nowhere in the west has farm- ing industry been better repaid, or business enterprise of every kind been more amply rewarded. The Illinois and Michigan Canal, passing nearly through the center of this tract of land, is one of the largest, most substantial, .and splendid works of the age. It completes and 4484 furnishes the most important connecting link in the great circuit of the boundless inland commerce of our country. It has been in operation but two seasons, and its effect upon the value of produce and property, and all the leading branches of trade within its influence, has outrun all just expectations. Its future bearing upon these great interests will only be limited by the horizion that marks the boundary of the en- terprise, improvement and prosperity of the west, our coun- try, and the world. Looking, then, at this property, in its true position, with all the numerous advantages attending it, as well as the su- perior character of the property itself, and the low price at which it will be sold, it is no assumption to assert, that no part of the country, at the present time, offers greater in- ducement to the farmer or business man of every description than does this district of land; and for the benefit of the canal fund, and the counties in which they are situated, the hope is, that they will not long remain unsold and unoccu- pied.’’ 4485 Thereupon counsel for complainant again called the court ’s attention to the letters of. Colonel Bixby and the As- sistant Secretary of War, and urged the admission in evidence of said document which had been previously excluded. Whereupon, after extended argument, the court ruled as follows: ‘^The Court. I will admit the evidence and reverse the rul- ing. ’ ’ Said documents were received and read in evidence as fol- lows : 1297 ‘^United States Engineeeing Office, 508 Federal Building, Cliicago, 111., March 27, 1906. Brig. Gen. A. Mackenzie, Chief of Engineers, U. S. Army, Washington, 1). C. General : 1. . In reply to Department letter (E. D. 58726) dated 4486 March 16, 1906, as to the proposed plans of a water power company for a dam across the Desplaines Biver, 111., just above its mouth, which have been verbally and informally presented to your office by the Hon. H. M. Snapp and the water-power representatives, I have herewith to submit re- port as follows : — 2. The dam in question is that proposed by Chas. A. , Munroe, of Chicago, 111., as explained by his letter to this of- fice under date of March 20, 1906, with inclosures (copies herewith — 2 letters, 3 blue prints). (5 incls.) 3. The Desplaines Eiver, so far as now known to this ^ office, has never yet been considered a navigable stream of the United States. It is therefore apparently as yet subject to such jurisdiction as applies to all other unnavigable streams and not subject to the provisions of Section 9-13, Act of March 3, 1899, or to other similar U. S. legislation. 4. The agents of the water power company in question, informally claim to have secured possession of all the land on each bank of the river necessary to allow for construc- tion of the dam and of its accessories, and to protect them- selves frorn all future claims for over-flowage created thereby, so far as any existing known rights are concerned; and they likewise claim that there is no existing State law, or United States law which prohibits their legally going ahead with their proposed construction and that no special law is needed 4487 therefor. They adnfit, however, that in some minor mat- ters, they still lack necessary authority from the local Board of Supervisors, to condemn certain properties which they still wish to acquire in order to facilitate or simplify their future work (such permission, however, not being absolutely essential to such work) and Ihey state that the Board of Supervisors are willing to grant such authority as soon as it is evident that the proposed power dam construction will not interfere with the future development of the river for naviga- tion purposes. 5. The water power company agents likewise state that their object in bringing the matter up before the War De- partment at present, is to make evident that the proposed dam construction not only does not conflict with any existing U. S. law but also will assist rather than injure the possible future navigation of the Desplaines and Illinois Kivers, should 1298 Letter — Col. Bixhy. — Continued. the improvement of such rivers ever be authorized by Con- gress in the manner proposed by the last Board Report of Au- gust 26, 1905, upon the feasibility and cost of a navigable waterway from Lockport, 111., to St. Louis, Mo., via the Des- plaines, Illinois, and Mississippi Rivers, (House Document No. 263, 59th Congress, 1st Session) ; and they desire to se- cure from the A¥ar Department some expression of opinion, informal or otherwise, so far as it can properly be given, that will allow them to assure all inquirers that the l¥ar Depart- 4488 ment so understands the situation, and is making no ob- jection to sucli prompt progress of the work as is necessary to a business enterprise of its magnitude and importance. 6. Paragraph 17 of the Board Report of August 26, 1905, above referred to, specially stated that the plan submitted by the Board was ^not designed to develop water power, but there will probably be no difficulty in modifying it, so as fo confirm to such development if those who are to benefit there- by will co-operate with the Government. They should pay the cost of the dams, and the damage from flowage, which is no more than tliey would be compelled to do if the Government made no improvement.’ The plans herewith submitted by Mr. Munroe show plainly a proposed co-operation such as that described in the above Board report, offered in such manner as not only to pay the cost of this power dam, and to pro- tect the United States against flowage damage, but also to lessen by one the number of locks and dams necessary for future navigation and to otherwise save both time and money ($142,385 in first cost, and $4,000 annually thereafter for maintenance and operation) to the United States, in case Congress should finally decide to undertake the improvement covered by the August 26, 1905, Board report, or to otherwise make this river navigable in this neighborhood. All informa- tion, so far received by this office, appears to substantiate the statements of Mr. Munroe, as described above; and I 4489 consider that his proposition should be encouraged and that he should receive from the War Department whatever ex- pression of favorable consideration may be proper and allow- able under such circumstances. 7. I have carefully considered the question of this power dam project and have talked it over at intervals with Mr. Woerman, while he was Assistant Engineer in local charge of the Illinois River survey under this office before he had been employed by Mr. Munroe, as well as since that time, and have discussed the matter also with Mr. Munroe; and I believe that the provisos of the next paragraph below are fair and advantageous to both sides, and will leave to the future only the question of regulating pool levels so as to avoid a conflict between depths of water needed for naviga- tion and heads of water needed for power purposes, and so 1299 as to divide up the river water between the two according to such rights as may exist when the river shall become a nav- igable water (which it appears not to be at present), and when the United States shall decide to give up the use of the canal and to assume the improvement of the river. Until such time I do not see how the War Department can assume any definite jurisdiction of the Desplaines River or make any definite demands upon any water-power company al- ready organized for the use of this river. It is my present understanding that these provisos will be accepted by Mr. Munroe. 4490 8. I have therefore to recommend that the Hon. H. M. Snapp and Mr. Charles A. Munroe be informed that the War Department will waive any and all objections which it may have to the progress of such water-power dam construction as proposed by Mr. Munroe ’s letter of March 20, 1906, and its inclosures, provided that he, on the part of the power dam owners, agrees. (a) that he will construct and maintain in good repair, just above the mouth of the Desplaines River, in location as approximately shown on the blue nrints, a dam and spill- way sufficient to hold the water surface of its upper pool at a height equal to the present mean level of Lake Joliet (taken at 512.0 feet, Memphis datum) ; and later whenever Congress shall have ordered the improvement of the Desplaines River for navigation purposes, will raise this dam 3.0 feet higher (giving pool level of 515.0 feet, Memphis datum) if the War- Department shall so order; and will grant the United States the use of such pool so far as needed for navigation ; (b) that he will assume the cost of, and protect the United States from, claims for all flowage damages caused by this dam between its site and the north line of Section 11, Town- ship 34, Range 9 East, which line is about 1.5 miles by river above the next higher lock and dam proposed by the Board report (i. e., Lock No. 4 and Dam No. 2, at the foot of Treat’s Islands) ; 4491 (c) that he will grant to the United States a strip of land at least 150 feet wide across the north end of this dam, to be so located between it and the tow-path of the present Illinois and Michigan Canal, as to connect the pres- ent mid river above, to the same below, in the manner ap- proximately indicated on the accompanying blue prints ; such strip to be used by the United States for the construction and maintenance of a boat lock, its necessary approaches, and other purposes of navigation; (d) that he will do all the above, free of cost to the United States ; Provided, that the War Department will waive any and all 1300 objections wliicli it may have to the progress of such water power dam construction. Very respectfully, W. H. Bixby, Lt. Col. Corps of Engineers.^ ^ 4492 ^‘Wak Department. Washington, June 7, 1906. Sir — • In reply to your letter of June 5, 1906, addressed to the War Department, in the matter of the construction by your- self and associates of a dam and spillway across the Desplaines Eiver near its mouth, at the location and as shown on maps submitted, with your letter of March 20, 1906, addressed to Lieutenant Colonel AY. H. Bixby, Corps of Engineers, U. S. Army, I have the honor to advise you as follows: It is understood that yourself and associates are willing to comply with the following conditions, viz: First. That the details of construction shall be such as to insure permanency and of sufficient capacity to hold the water surface of its upper pool at a height equal to the present mean . level of Lake Joliet (taken at 512.0 feet Memphis datum); and later whenever Congress shall have ordered the improve- ment of the Desplaines River for navigation purposes, the dam shall be raised by you and your associates 3.0 feet higher (giving pool level of 515.0 feet, Memphis datum), if the AAmr Department shall so order; the United States and the public to have the free use of such pool so fas as needed for navi- gation purposes, and the use of water for power purposes shall be so limited that the level of the pool shall at no 4493 time be reduced below that adopted for navigation in the plans of the LTnited States for the slack-water improvement of the river. Second. That the United States shall be protected from claims for all flowage damage caused by the dam between its site and the north line of section 11, township 34, range 9 east, which line is about 1.5 miles by river above the next higher lock and dam proposed by the Board of En- gineers’ report {i. e., Lock No. 4 and Dam No. 2 at the foot of Treat’s Island). Third. That there shall be conveyed to the United States free of cost a strip of land at least 150 feet wide across the north end of this dam, to be so located, between it and the tow-path of the present Illinois and Michigan Canal, as to connect the present midriver above the same below in the same manner approximately indicated on the accompanying blue prints; the right of the United States to enter upon and use such strip of land for the construction and main- tenance of a boat lock, its necessary approaches, and for 1301 other purposes of navigation, if it so desires, without liabil- ity for damages resulting in any way from its operation in connection with construction or maintenance of said lock and appurtenant works to be duly guaranteed. If these conditions are com]:)lied with, in the opinion of the Chief of Engineers, IT. S. Army, concurred in by this de- , partment, the work proposed is in general harmony *with the 4494 work of improvement recommended b}" the Board of Engi- neers appointed under authority of the Biver and Har- bor Act of June 13, 1902 (32 Stat. L., 331, 304), in its report dated August 20, 1905, printed as House Document No. 203, 59th Congress, first session. Inasmuch, however, as Congress has not as yet authorized the improvement of this river, this department does not deem it expedient to take further and definite action in the matter of approving the plans. Very respectfully, Robert Shaw Oliver, Assistant Secretary of War. Mr. Charles A. Monroe, The Rookery, Chicago, Illinois.^’ 4495 Thereupon counsel for defendant read in evidence the deed from Thomas Ford, Governor of the State of Illinois, to the trustees, the trustees at that time being William H. Swift, David Leavitt and Jacob Fry, trustees of the Illinois and Michigan Canal. Counsel for complainant objecting on the ground that the same was incompetent, irrelevant and immaterial. Said deed was thereupon marked Snyder Exhibit 1, and is as follows : 4496 To all to whom these presents shall come, /, Thomas Ford, Governor of the State of Illinois, send Greeting: Whereas, the General Assembly of the State of Illinois passed an act approved the twenty-first day of February, in the year of our Lord one thousand eight hundred and forty- three, entitled ^Wn Act to provide for the completion of the Illinois and Michigan Canal and for the payment of the Canal debt ‘Which said act, is in substance and effect as follows, viz : Whereas, It has been represented, that certain holders of the bonds of this state are willing to advance the necessary funds for the completion of the Illinois and Michigan Canal, upon being secured the payment of their said advances, and of their said bonds, by a vested lien upon the said Canal, lands and revenues; for the purpose, therefore, of accom- 1302 Deed, — Governor Ford to Canal Trustees. — Continued. plishing an object so desirable and beneficial to the said bond holders and the State: Section 1. Be it enacted by the people of the State of Illi- nois represented in the General xissembly. That, for the purpose of raising a fund for the completion of the Illinois and Michigan Canal the Governor of this State be, and here- by is fully authorized and empowered to negotiate a loan solely on the credit and pledge of the said Canal, its tolls, revenues and lands, to be granted to trustees, as hereinafter 4497 provided of one million six hundred thousand dollars, for a term not exceeding six years; and at a rate of interest not exceeding six per cent, per annum, payable out of the first moneys to be realized from the said canal, its lands, tolls and revenues ; the payment of interest and reimbursement of principal to be at such place, within, or without the United States, and payable in such currency as may be agreed on. Section 2. The holders of Canal bonds and other evidences of indebtedness of this State, issued for the purpose of aid- ing in construction of the Illinois and Michigan Canal, or hereafter to be issued for work done, percentage, scaleage, or damages, shall be first entitled to subscribe in proportion to the amount of bonds, or other indebtedness held by them, and take the whole of the said loan; but if within a reasonable time, to be determined by the Governor, any of the said hold- ers of Canal bonds, or indebtedness, shall neglect or refuse to subscribe as aforesaid, the whole of the said loan may be subscribed for, and taken by other holders of canal bonds, or indebtedness ; but if within a reasonable time, to be deter- mined upon by the Governor, the holders of the said canal bonds or other evidences of indebtedness, aforesaid shall not subscribe for, and take the whole of the said loan, then, and in that case, any other person or persons, body politic or cor- porate, shall be entitled to subscribe for, and take so much of 4498 the said loan as may remain unsubscribed for, by the said holders of bonds or other evidences of debt aforesaid. Section 3. After the said loan shall be subscribed for, as aforesaid, there shall be appointed three discreet persons to constitute a Board, to be known by the style and description of the ^ Board of Trustees of the Illinois and Michigan Canal,’ one of the said trustees shall be ajipointed by the Governor of this State, and the other two shall be elected or appointed by the subscribers to the said loan, or the holders of the cer- tificates authorized by this Act, in manner and form as here- inafter mentioned. Whenever any vacancy shall occur in the said Board of Trustees, either by death or resignatiou, or from any other cause, said vacancy shall be filled by the Governor, or holders of said certificates, to whom belonged the appoint- ment of the Trustees whose seat shall have become vacant, as the case may be. 1303 Section 4. The first election of Trustees by the subscrib- ers to said loan, under this act, shall be held at the Canal office, at Lockport, at such time as the Governor of this State shall appoint, under the direction of one of the Judges of the Supreme Court of this State, who is hereby appointed in- spector of the first election, and the two persons then elected as Trustees by the said subscribers, and the person appointed trustee by the Governor shall hold their offices for two years 4499 from the time of their said election or appointment, and un- til others are elected. Section 5. Subsequent elections shall be held every two years, at such time and place, and under the directions of such persons as a majority of the Trustees, for the time being shall, by resolution to be entered on their minutes, appoint, and shall hold their offices for two years, and until others are elected in their stead. Section 6. At the election of Trustees under this act, each stockholder shall be entitled to one vote for each and every one thousand dollars of stock held by him; and in all elec- tions, votes may be given in person or by proxy. Section 7. All elections shall be ballot, and the two who shall have the ^createst number of votes shall De trie two Trustees duly elected by the said subscribers or holders of said certificates. At all such elections, the said subscribers or holders of said certificates, shall designate upon their bal- lots one of the persons voted for as President; and the per- son having the greatest number of votes as Trustee and pres- ident, shall be one of the said Trustees and President of said Board. Section 8. The said Board of Trustees of the Illinois and Michigan Canal, when duly appointed and elected, as afore- said, shall apportion their respective duties among themselves, and so far as is not incompatible with this act, shall possess 4500 all the powers, and perform all the duties conferred upon the Board of Commissioners of the Illinois and Michigan Canal, by the act entitled ^An Act for the construction of the Illinois and Michigan Canal, ^ approved January ninth, eighteen hundred and thirty-six, and the acts supplementary and amendatory thereto ; and shall take an oath or affirmation, and give bonds, with security, for the faithful discharge of the duties imposed upon them b}^ this act. Section 9. If the holders of any of the said canal bonds, or other evidences of indebtedness issued for the purpose of aiding in the construction of the Illinois and Michigan Canal, shall become subscribers for the said loan, or any part there- of, they shall, at the time of subscribing, file or cause to be filed with the Governor, a brief description of said bonds or other evidences of indebtedness, aforesaid, owned by them; which description shall be deposited by the Governor 1304 Deed^—Govenior Ford to Canal Trustees. — Continued. in the office of Auditor of Public Accounts, in order that the evidences may be preserved to discriminate the holders who subscribed for the said loan, and to identify the said bonds, or other evidences of indebtedness, aforesaid, that may in consequence be entitled to a priority of payment out of prop- erty and assets granted to the Board of Trustees as herein- after provided. Section 10. For the purpose of placing in the hands of Trustees full and ample security for the payment of said 4501 loan, authorized by this act, and the interest thereon, as well as for securing a preference in the payment of such of the canal bonds and other evidences of indebtedness issued by this State, for the purpose of aiding in the construction of the Illinois and Michigan Canal, as may be owned by the sub- scribers to the said loan, the State does hereby irrevocably grant to the said Board of Trustees of the Illinois and Mich- igan Canal, the bed of the said Illinois and Michigan Canal, and the land over which the same passes, including its banks, margins, tow-paths, feeders, basins, right of way, locks, dams, water power, structures, stone excavated, and stone and ma- terials quarried, purchased, procured or collected for its con- struction, and all the property, right, title and interest, of the State, of, in and to, the said Canal, with all the heredita- ments and appurtenances thereunto belonging or in any wise appertaining; and also all the remaining lands and lots be- longing to the canal fund, or which hereafter may be given, granted, or donated by the General Government to the State, to aid in the construction of the said canal, and the build- ings and erections belonging to the State thereon situated. The said Board of Trustees to have, hold, nossess, and enjoy the same as fully and as absolutely, in all respects as the state now can, or hereafter could do, for the uses, purposes, and trusts hereinafter mentioned; but it is to be understood that 4502 all canal lands and lots heretofore sold by the Board of Commissioners upon which moneys are now due, or may hereafter become due, whether the said lands and lots be now forfeited or relinquished, or hereafter become forfeited or relinquished shall be exempt from the aforesaid provisions of this act; and the trustee herein provided to be appointed by the Governor, or any other officer, or officers ^ having the management of the affairs of the canl, until said Trustee be appointed on the part of the State, is hereby authorized and required to settle all accounts due to contractors and others (except for such damages as are hereinafter provided for) by issuing certificates of indebtedness, which together with the certificates of Indebtedness Scrip and acceptances here- tofore issued by the said Canal Commissioners shall be re- ceived by said trustee, or other officer or officers aforesaid in payment for said lots and lands whenever they may be 1305 presented for that purpose, the said lands and lots hereby reserved shall, within three months after the passage of this act, be appraised, as is provided in the thirteenth section of this act, and sold in accordance with the laws of this State negotiating the sale of Canal lands. Section 11. The subscribers to' the said loan shall execute an agreement to, and with, the Governor of this State, to pay the amount by them respectively subscribed, to the said Board of Trustees, at such times and in such proportions 4503 as said Trustees shall direct; and said agreement shall specify the manner in which said Trustees shall give notice to the said subscribers of every call for payment; provided, That in case any subscribers under the provisions of this act, shall fail, neglect, or refuse to pay any instalment at the time called for by said Trustees, he shall forfeit all payments pre- viously made, and all benefits and advantages arising under the provisions of this act; provided, however, That the said trustees shall be bound to make a call for at least one hun- dred thousand dollars per quarter, for the first year after their appointment. Section 12. Whenever and as often as the said subscribers to the said loan shall make a payment of any portion of their subscriptions, in pursuance of a call of the said Trustees, the said Board of Trustees, by their President and Secretary, under the seal of said Board, shall execute a certificate to each of the said subscribers for the amount paid by them or their respective subscriptions, with one year’s interest at the rate of six per cent., added to the principal, stipulating for the pa>unent of the same within six years, with interest at the rate of six per cent, per annum, to be computed after one year from the date of said certificate, and to be paid semi-annually thereafter; the said principal and interest to be paid by the said Trustees out of tlie first moneys to be realized by them 4504 from the Illinois and Michigan Canal, its assets, revenues, tolls, and lands granted to the said trustees by this act ; which said certificate shall also be countersigned by the Governor, and the impress of the great seal of the State shall be affixed thereon by the Secretary of State. Section 13. The said Board of Trustees when appointed are hereby authorized to take possession of the said canal, lands, property and assets, granted them by this act, and proceed to complete the same. They are hereby authorized to make such changes and alterations of the original plan of said canal, as they may deem advisable without reducing its present capacity, or materially changing its location, hav- ing due regard to economy, permanency of the work, and an adequate supply of water at all seasons. None of the lots, lands, or water powers so granted to the said Trustees, shall be sold until three months after the completion of the said 1306 Deed, — Governor Ford to Canal Trustees, — Continued, canal; the said lots, lands and water -powers shall then be of- fered for sale by the said Trustees at public auctions, in lots and legal subdivisions, once or oftener in each year, for the four succeeding years; said sales to be made for cash, or on credit, in the manner prescribed in the act of ninth of January, eighteen hundred and thirty-six. The said land, lots, and water powers before they are offered for sale as afore- said shall be appraised by three disinterested persons to be appointed by the Judge of the Circuit in which said lands, lots 4505 and water power are situated, who shall talie an oath faith- fully and impartially to discharge the duty of appraisers; said lands, lots, and water power, when so appraised, shall not be sold for less than the appraisement. After the expira- tion of said four years, the said Trustees shall expose the res- idue of said lands, which may remain on hand, to sale at such times, and in such manner, as they may deem proper. The said Board of Trustees are authorized to convey lands and water powers sold by them as aforesaid, after the purchase for the same be fully paid, but not before, and the said land and lots shall be exempt from taxation of every description, by and under the authority of any law of this State, until after the same shall have been sold and conveyed by the said Trusts'es, as aforesaid; Provided, also, that in the construc- tion of the said canal, no change shall be made in its location, so as to divert the water power from canal lands. Provided, That in all cases where improvements were made upon the said canal lands or lots, previous to the first day of February, eighteen hundred and forty-three, the owner of such im- provements shall be entitled to purchase the said lands or lots, on which said improvements are situated, at an appraisement to be made as aforesaid, without reference to said improve- ments. Section 14. The said Trustees shall proceed to the coin- 4506 pletion of the said canal, in a good substantial and workman- like manner, so that the same shall, if practicable, be ready for use and navigation within two years and six months from the time this act goes into operation. The said Trustees shall keep a just, full and accurate account of all the costs and expenditures of completing and superintending the said canal, and of the rents, issues, revenues, and profits received by them from the said canal and from the property granted to them by this act ; and of the amounts received by them under the said loans, and shall annually make a report to the Gov- ernor in manner and form specified in the forty-third sec- tion of the said act of January ninth, eighteen hundred and thirty-six; Provided, That in case the subscribers under the provisions of this act, shall fail or neglect, to complete the said canal within three years after this act goes into opera- 1307 tion, then and in such case, the lands and property hereby granted to said trustees, shall revert to the State. Section 15. The said Board of Trustees shall annually establish a tariff of tolls to be paid for transportation on said canal, but the legislature hereby reserves the right to increase the tolls with a view to an increase of revenue, but shall not reduce the same without the consent of the Trustees, and are hereby fully authorized and empowered to collect 4507 the same, and from time to time make, ordain and establish such reasonable rules, by-laws, and regulations, in relation to the collection of tolls, the transportation upon the canal, the conduct of boats and rafts, and the general police of the said canal, as are usual, or may be found necessary, and to enforce the observance of the same; and that said canal when com- pleted, shall in all future time, be free for the transportation of the troops of the United States, and their munitions of war, without the payment of any toll whatever. Section 16. After the completion of the said canal, as aforesaid, the said Board of Trustees shall make annual divi- dends of the moneys which shall come to their hands from the said canal, its assets, tolls, revenues, and lands granted to the said Trustees by this act after payment of incidental ex- penses among the holders of the bonds of this State, in the following order: First, the said Board of Trustees shall an- nually make a pro rata dividend or payment of said moneys on the certificates given to the subscribers to the loan au- thorized by this act until said certificates and interest there- on are fully paid. Second, the said Trustees shall then make annual dividends and payments of said money upon the in- terest due upon the bonds and other evidences of indebted- ness held by the subscribers to the said loan, a description whereof shall have been filed with the Governor, as provided 4508 in the ninth section of this act, until the interest thereon is fully paid. Third, the said Trustees shall then make annual dividends and payments of said money upon the interest due to the non-subscribing holders of bonds or other evidence of canal indebtedness. Fourth, after paying all interest due such non-subscribing bond holders, the said Trustees shall make annual dividends pro rata upon the principal of the bonds and other evidences of canal indebtedness held by the subscribers to said loan, as provided for by the ninth sec- tion of this act, until the same shall be liquidated ; at which time the trust hereby created shall cease, and the canal shall revert to the State, with all the appurtenances thereunto be- longing : Provided, That the certificates of canal indebtedness, not stipulating, 'on their face, for the payment of interest, shall, when registered by subscribers to said loan, as hereinbefore provided, bear an interest of six per cent, per annum, from 1308 Deed, — Governor Ford, to Canal Trustees. — Continued. and after they shall be so registered: Provided, further, that no appraisal shall be made for any damages arising under the provisions of any contract, entered into in pursuance of an act for the construction of the Illinois and Michigan Canal, unless the contractor or contractors interested therein shall first signify his or their consent in writing (which writing shall be deposited with the appraisers, to be filed in the Au- ditor’s office), that such appraisal of damages shall be made 4509 without allowing any prospective damages, or any forfeits which said contractor or contractors_might have made, had they finished their jobs, but such contractor or contractors shall be allowed the value of their macliinery upon the canal at the time the work stopped, and back percentage and scale- age, which entire amount of damages allowed to all con- tractors shall not exceed the sum of two hundred and thirty thousand dollars. Section 17. The Governor is hereby authorized and em- powered to appoint three discreet and skillful persons to go onto the jobs and lettings upon the canal, and appraise the actual damage which the respective contractors upon the said canal, will sustain, in being deprived of the same; said ap- praisal shall be final and conclusive, unless appealed from. That if any person shall consider himself aggrieved by the decision of said appriasers, he may appeal from the same, at any time within thirty days, to the Circuit Court of the County in which the job so appraised is situated. If the Gov- ernor shall be satisfied that the appraisal is fair and honest, he shall issue certificates of Canal indebtedness, bearing in- terest at six per cent., to the persons in whose favor the appraisal shall be made^ for the amount the holders of which certificates shall be entitled to all the privileges conferred by this act upon other holders of canal indebtedness. And the present contractors of the Illinois and Michigan Canal shall have the right to take the contract for the jobs which they now hold, at the estimate of the engineer to be appointed by 4510 said Trustees, under such regulations and provisions as the said Trustees shall direct. Section 18. This act shall go into effect, and the said canal property and assets shall rest in the said Trustees, as here- inbefore granted, whenever, and as soon as the full amount of the said loan shall be subscribed for and the Trustees elected as hereinbefore provided ; and when this act goes into effect, so much of the acts heretofore passed by the legisla- ture of this state in relation to the Illinois and Michigan Canal, and the canal lands and property as conflicts with the provisions of this act are hereby repealed. Section 19. Whenever the trust created by this act shall have been fully executed and performed by the said Trus- tees, the said canal and the canal property that may then re- 1309 main shall revert to the State ; and the State hereby reserves the right of paying oft the bonds and certificates to be paid to the said Trustees, and the incidental expenses paid by them, and the interest thereon; and the said Trustees shall then resign the said canal ancT the remaining canal property and assets to the State. Section 20. This act shall be a public act, and shall be liberally construed in all courts of justice, and the State hereby solemnly pledges its faith to supply, by future legis- lation, all such defects as may be found necessary to enable the said Trustees to carry into full effect the fair and obvious 4511 intent of this act. Section 21. If in consequence of any defect, omission, or objection to the foregoing act, the said bond holders or other persons, shall neglect or refuse to subscribe for the said loan, in that case the Governor is hereby authorized to negotiate, and enter into a contract with the said bond holders, or other persons in pursuance of the general princijoles of this act: Provided, That he shall make no further pledge of the faith or credit of the state, for any advance of money, but shall be limited to pledging the canal and canal property therefor: And, provided further. That in any negotiations to be made under the provisions of this act, for the purpose of carrying them into effect, nothing shall be done which shall in any wise interfere with the rights now secured to the holders of canal bonds. The Governor is hereby vested with all such power as may be necessary to carry this act into operation, or to make or cause to be made such negotiations. Section 22. The said Trustees shall employ a chief engi- neer of known and established character, for experience and integrity, who shall be subject to the direction of the Trus- tees, but shall be required to execute a bond to the Governor, in the sum of ten thousand dollars, to be approved by him, for the faithful performance of all the duties of an engineer, and shall be subject to be removed by the Governor for any 4512 good reason, which he shall make known to the next Gen-^ era! Assembly. The said engineer, shall, in addition, be re- quired to take an oath Ghat he shall faithfully and impartially perform all the duties of his office without respect to persons, and that he is neither interested, nor will be interested in any job, work, or contract, let or to be let on the canal, or con- nected therewith’; which oath shall be entered and subscribed on the bond of said engineer. And whereas, The General Assembly of the State of Illinois, at their session begun on the first Monday of December, in the year of our Lord one thousand eight hundred and forty- four, passed an act entitled ^An Act supplementary to an act to provide for the completion of the Illinois and Michigan 1310 Deed^ — Governor Ford to Canal Trustees. — Continued. Canal, and the payment of the canal debt, approved February 21st, 1843C Approved March 1st, 1845; which said act is in substance and effect as follows, viz: Section 1. Be it enacted by the People of the State of Illinois represented in the General Assembly, That after the contract for the loan of one million and six hundred thousand dollars, as contemplated in the Act entitled ‘An Act to pro- vide for the completion of the Illinois and Michigan Canal, and for the payment of the canal debt.’ Approved February twenty-first, eighteen hundred and forty-three, shall be duly executed in all respects as is provided by the terms of the above recited act, as modified by the provisions of this act, and the trustees are appointed as is contemplated in said 4513 act, the Governor of this State shall execute and deliver un- der the seal of State, a deed of trust to the said Trustees of all the property and effects mentioned in the tenth section of said act, which said conveyance shall include the lands and lots remaining unsold, donated by the United States to the State of Illinois to aid in the completion of the said canal, to be held in trust as is in the said act stipulated, and it is ex- pressly provided that the subscribers to said loan may and shall register their bonds or other evidences of indebtedness upon which they may have made or may hereafter make their subscriptions, within one year after the appointment of Trus- tees, and the said subscribers shall be entitled to priority in the payment of the respective advances to be made by them, and the interest thereon; also a priority in the payment of the principal and interest of the bonds or other evidences of indebtedness to be registered by them out of the proceeds of the said trust property, anything in the said act above men- tioned to the contrary notwithstanding. Section 2. The majority of the said Board of Trustees shall have power and authority to act and decide in all cases, and their acts shall bind all parties, and in appointing the said Trustees each subscriber to the said loan shall be en- titled to one vote for each sum of three hundred and twenty dollars subscribed, and such election may be held in the city of New York, under the direction of the District Judge of 4514 the United States, for that district, or such person as he for that purpose may appoint. Section 3. In case a sufficient sum shall not be subscribed or paid, to complete said canal, the said subscribers shall have pari passu, with other persons, who may subscribe and pay the residue of the amount necessary to complete the canal; provided That the subscribers to said loan shall have the right to subscribe and fill up the amount necessary to fin- ish said canal, in the first instance, and if they neglect so to do, then, any other person may subscribe such amount; And 1311 provided further, That such subscribers may register bonds upon such subscriptions as hereinbefore provided, within one year after such subscriptions. Section 4. When the amount due for arrears and difference of interest on the registered bonds and other canal indebted- ness shall be extinguished, then the principal of said registered bonds and canal indebtedness shall be paid, and when the said principal shall have been paid, the said Trustees shall proceed to pay the interest on the unregistered canal bonds, and canal indebtedness. Section 5. The preliminary expenses of the negotiation of said contract, with the expenses of the examination of the canal property by the agents appointed by the authority of • the bondholders, shall be first paid by the said Trustees unless some other provision for their payment be made by the Gen- 4515 eral Assembly; but no further expense shall be incurred by the State, by sending agents to Europe or elsewhere, in rela- tion to the matter. Section 6. If the said canal shall not be completed within three years, as is contemplated in the fourteenth section of the above recited act, the subscribers to said loan who shall have advanced money in pursuance of their subscriptions shall not forfeit the priority of payment secured to them by this act, but shall share in the trust property pari passu, with such other persons as will advance further sums, if such- would be necessary to complete the canal. And whereas, After the approval of the aforesaid actSj and before the election and appointment of the said Trustees as hereinafter mentioned, the whole amount of the said loan, of one million six hundred thousand dollars, was subscribed for and filled up in strict pursuance of the provisions of the said acts and the subscribers thereto have entitled them- selves to the privileges conferred upon such subscribers by the said acts. And whereas, The said subscribers to said loan, have made and executed a contract or agreement, to, and with the Gov- • ernor aforesaid' in strict conformity to, and with the provi- sions of the aforesaid acts; and did, at a meeting duly and legally summoned and called by the said Governor, to be held in the city of New York, on the twenty-seventh day of May, 4516 eighteen hundred and forty-five, duly and legally elect ‘in conformity with the provisions of the said acts, William H. Swift, a Captain in the service of the United States, and David Leavitt, Esquire, of the said city of New York, as trus- tees on the part of the said subscribers, and him, the said William H. Swift, President of the said Board of Trustees. And whereas. The said Governor has duly appointed J acob Fry of the County of Will in the State of Illinois, to be a 1312 Deed, — Govenior Ford- to Canal Trustees. — Continued. trustee on the part of the said State, they the said William H. Swift, David Leavitt and Jacob Fry, now constituting the ‘Board of Trustees of the Illinois and Michigan CanaF duly elected and appointed in pursuance with the provisions of the above recited acts. And whereas, All things which the said acts require, or pro- vide for, as necessary to be done before the execution of a deed of trust to the said Trustees having been done and com- pleted according to the terms and requirements the said acts: Noiv, therefore, he it known, to all persons ivJioni it may eoncern, that I, Thomas Ford, Governor of the State of Illi- nois, by virtue of the powers and authority vested in me, as aforesaid, and in execution of the provisions of the afore- said acts, as well as in consideration of the subscriptions and contract entered into by the said subscribers, and the prem- ises aforesaid, do by these presents, hereby give, grant, sell, 4517 bargain, convey, transfer, assign, and make over unto the said William H. Swift, David Leavitt and Jacob Fry, Trus- tees of the Illinois and Michigan Canal, as aforesaid, and to their successors in the said trust, the bed of the said Illinois and Michigan Canal, and the land over which the same passes including its banks, margins, tow-paths, feeders, basins, right of way, locks, dams, water power structures stone excavated and stone materials quarried purchased, procured or col- lected for its construction; and the said canal with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining; and all the remaining lands and lots belonging to the canal fund, or which may hereafter be given, granted, or donated, by the General Government to the State, to aid in the construction of the said canal; and the buildings and erections belonging to the State thereon situated, also the lands and lots remaining un- sold, donated by the United States to the State of Illinois to aid ip the completion of the said canal. To have, to hold, possess and enjoy the premises aforesaid, without hindrance or molestation, to them, the said William H. Swift, David Leavitt and Jacob Fry, as Trustees of the Illinois and Mich- igan Canal, as aforesaid, and their successors, in trust, as in the said above recited acts stipulated, and to, and for, the uses and purposes in the said acts expressed and intended. And so to have, hold and enjoy the said property, with 4518 the rights of controlliug, managing, selling and disposing of the same, and subject to all the duties and obligations as they are set forth and specified in the said Acts of the General As- sembly, until from the proceeds of the said property, and the revenue of the said canal after it shall be completed, all the moneys to be paid and trusts performed by the said Trus- tees, as specified in the said acts shall be fully paid, per- 1313 formed, satisfied and extinguished together with all just and necessary charges and expenditures incurred and to be in- curred in carrying on the work and business of the said trust. And the property of the said Trustees, the rights of the said subscribers to the said loan, or any of them, and the rights of their heirs, executors, administrators, or assigns, shall not be in anywise affected or impaired, in case any of the said subscribers to the said loan, their heirs, executors, administra- tors, or assigns, or the holders of bonds, or canal indebtedness, entitled to be paid by the said Trustees shall be citizens or subjects of any power at any time at war with the United States of America, or the State of Illinois. In testimony of all which, I, Thomas Ford, Governor of the State of Illinois, in virtue of the power and authority in me vested, by force of the legislative acts above recited, have hereunto set my hand, and caused the seal of State to be af- fixed, this twenty-sixth day of June, in the year of our Lord one thousand eight hundred and forty-five, and of the Inde- pendence of the United States, the sixty-ninth. Thomas Ford. Signed triplicate by the Governor, Thompson Campbell, Secretary of State. State of Illinois, 1 Will County. S On the 1st day of August, 1845, the within deed was left for record and was duly recorded in Book 1, pages 563, 4, 5, 6, 7, 8, 9, 70, 71, 2, 3, & 4. Eobert C. Duncan', (5531) Recorder. Filed August 1st, 1845. Fees $8.82. 4520 General Offices Board of Canal Commissioners, State of Illinois, State of Illinois, ) Will County. ( I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Eecords and Files belonging to said Board, do hereby cer- tify that the above and foregoing is a true and correct copy of 1314 deed now on file in this office and in my keeping, as regards the matter herein contained. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 11th day of April, A. D. 1908. John M. Snyder, (Seal) Acting Secretary as aforesaid. 4521 Counsel for defendant offered a certified copy of the final report of the trustees of the Illinois and Michigan Canal, being the 27th report of the Board of Trustees, December 1, 1870, to AngTist, 1871, and called special attention at this time to that part of the report as follows: There remained unsold on the 1st May, 1871, fourteen tracts of land varying in extent from 3/4 of an acre to 80 acres, amounting in the aggregate to 263.05 acres.” The report is a final report of the Board of Trustees of the Illinois and Michigan Canal, dated October, 1871, and will be marked Snyder Exhibit 2. Said report is in words and figures following, to-wit : 4522 Circular No. 24. The Illinois and Michigan Canal Final Beport of the Board of Trustees. October, 187i New YoiA, C. 0. Jones, Printer and Stationer, 76 Cedar Street, 1871. Circular No. 24. Final Beport of the Board of Trustees of the Illinois and Michigan Canal. Being for that portion of the financial year between De- cember 1, 1870, and the 16th August, 1871, and corresponding with the Twenty-seventh Annual Beport of the Board of Trus- tees to the Governor of Illinois, under the Act of February 21, 1843. Illinois and Michigan Canal Office) New York, October 20, 1871. ) 4523 By a resolution of the Board of Trustees of the Illinois and Michigan Canal, the President was requested to prepare 1315 a Report of the proceedings of said Board from the 1st De- cember, 1870, close of the iast Annual Circular, or Reioort, to the 16th August, 1871, the day on which the Trust created on the 26 June, 1845, under the Act of February 21, 1841, was closed under the Act of April 22, 1871. Since the year 1848, when the Canal was first opened for public use, these circulars or Reports, have been published annually, for the information of the subscribers to the loan of $1,600,000, and the holders of Canal Bonds, this circular will, of course, close the series. Receipts Dec. 1, 1870, to August 16, 1871. 1 Sales of Lands and lots 275.83 2 Notes paid on account of previous sales 7,440.73 3 Water rents (Joliet) 446.10 4 Tolls, Dec. 1, to April 30, 1871 19,982.50 5 Interest on deposits in New York Life and Trust Co., Dec. 1, 1870, to August 16, 1871 2,766.02 Total amount received 30,911.18 Balance in hands of treasurer, Nov. 30, 1870 189,688.89 Total to be accounted for 220,600.07 4524 Expenditures, December 1, 1870, to August 16, 1871. 1 Principal Registered canal bonds 81,623.33 2 Premium on gold for dividend on bonds payable in London 8,561.17 3 Maintenance and repairs of canal feeders, and pumping engines 24,247.56 4 Tolls expenses of collection, superintendence, lock-keepers, etc 2,567.64 5 Contingent and general expenses 10,982.88 6 Canal property, sales of land and expenses 500.00 7 Interest and exchange 17.98 Total Expenditures 128,500.46 Receipts of 1871 and balance of 1870 (above) .... 220,600.07 Balance in hands of Trustees, August 16, 1871. . . . 92,099.61 TreasukerY Vouchers for 1870 and 1871. The Committee designated in the Regulations of the Board of Trustees, to examine the vouchers of the Treasurer, con- sisting of the President, the State Trustee, and the Secretary, performed that dutv at the Canal office in Lockport, Mav 16, 1871. The Committee examined the vouchers for the year ending November 30, 1870, numbered 10,420 to 10,254, inclusive^ amounting to 322,029.26, viz: 1316 Final Report, — Canal Trustees 1871, — Continued. 4525 For General Expenditures 131,035.64 For principal registered Canal Bonds 160,102.08 For premium on gold for London Bonds 30,891.54 $322,029.26 All these vouchers having been examined and verified by the Auditor of Accounts, Mr. A. J. Mathewson, as appears by his two reports of May 15 and 20, 1870, the Committee certified the amount and ordered the same to be carried to the credit of the Treasurer on the books of the Trustees. The same Committee then examined the vouchers of the Treasurer for his expenditures between the 1st December, 1870, and the 30th April, 1871, inclusive, numbered 10,255 to 10,339 inclusive, viz: For General Expenditures 33,408.21 For principal registered Canal Bonds 81,623.33 For premium on gold for London bonds 8,561.17 $123,592.71 All these vouchers having been examined and verified in like manner by the Auditor of Accounts, Mr. A. J. Mathewson, as appears by his two reports of May 15, 1871, the Committee certified the amount and ordered the same to be passed to the credit of the Treasurer on the books of the Trustees. 4526 Recapitulation. Whole amount of moneys received by the Board of Trustees from June 26, 1845, to November 30, 1870 $10,979,861.18 From Dec. 1, 1870, to April 30, 1871 29,646.23 Whole amount vouchers audited from June 26, 1845, to April 30, 1871 10,913,765.00 Balance in hands of Treasurer April 30, 1871 95,742.11 Sale of Canal Lands and Lots. No canal lands have been sold by the Trustees since Novem- ber 30, 1870. Canal Lots to the amount of 935,000 dollars were sold prior to April 30, 1871, upon which the payments in cash amounted to 275.83 dollars. The amount of notes remaining unpaid on account of lands and lots previously sold was 4,135.00 dollars on the 1st May, 1871. All these notes were delivered to the Board of Canal Com- missioners May 2, 1871, and a receipt therefor given by them on that day. 11,009,507.41 11,009,507.41 1317 There remained unsold on the 1st May, 1871, 14 tracts of land varying in extent from 3/4 of an acre to 80 acres, amounting in the aggregate to 263.05 acres. 4527 There are two cases in which parties owning adjoining property have extended their boundaries beyond their own proper limits, but the lands have not been conveyed by the Trustees. The first lies in the city of Morris, Grundy County, in Sec. 9, Township 33, Eange 7. The second is in the city of Chi- cago, north of Kedzie street. Sec. 9, Township 39, Eange 14. Eegistered Canal Bonds. By a resolution dated November 25, 1870, the Board of Trustees declared a dividend of five per cent on account of principal of registered Canal Bonds applicable to the year 1870, and the same was made payable in New York, on and after first Monday in January, 1871. This dividend (No. 18) constituted the twelfth paid on ac- count of principal of registered bonds. Dividends Nos. 1 to 6 inclusive, (January 1, 1854, to January 5, 1857) relate to the arrears of interest on registered Canal Bonds, embracing the unpaid coupons of 1843, and from thence forward. Dividend No. 18, constituted, with previous payments, eighty-five per cent of the principal of registered bonds leav- ing fifteen per cent unpaid. The whole amount paid on account of this class of bonds 4528 by the Trustees from January, 1854, to August 16, 1871, principal and interest, and premium on gold is $4,721,950.47, thus : Arrears of interest $2,155,622.38 Principal 2,195,463.67 Premium on gold for London Bonds 370,864.42 $4,721,950.47 Proceedings of the Board of Trustees Under the Act of April 22, 1871, Closing the Trust. The Board of Trustees received a certified copy of the above named Act on the 1st May, and upon its receipt the Secretary was instructed to give the Canal Commissioners free access to all the records and accounts of the Trustees, in order that they might have the opportunity and the means of making such examination of said accounts, as requirt^l by the Act above referred to. The Secretary was also di- rected to inform the Canal Commissioners that the Trustees would be prepared to co-operate with them in their examina- tion, at such time and in such manner as would be most con- venient to the Commissioners. For the purpose of facilitating the preliminary measures, a meeting of the Board of Trustees was agreed upon for the 1318 Final Report, — Canal Trustees 1871. — Continued. 15th of May, at the Canal office, Lockport. On that day, and the two following days, 16 and 17, two Boards met there 4529 informally, and agreed upon a course of proceedings which, in the judgment of both boards, would best effect the object contemplated in the Act of April 22, 1871, for closing the trust in the shortest time, and in the most simple manner. To enable the Trustees to comply with the provisions of the Act of April 22, it was agreed by and between the two Boards, the Trustees and the Canal Commissioners, that the Trustees should pay all the bills for carrying on the work of the canal which belonged to the month of April, 1871, and that they should cease to receive moneys after the 30th day of that month, for tolls, sales of lands, or other sources ; in other words, that the canal and its accessory works, machinery, buildings, etc. and the management thereof, should pass into the hands of the Canal Commissioners on the 1st of May, 1871, thereby giving the Trustees a fixed day for closing the general accounts of the trust, exhibiting the balance due to the State of Illinois of said 30th of April, 1871, and leaving for a later period an additional account to be made covering such expenditures as might become necessary after the 30th of April, and before the release deed contemplated in the Act of April 22, 1871, should be executed and delivered to the Governor of Illinois, by the Trustees this last Act de- 4530 pending upon the fulfillment of the provisions of the Act of February 21, 1843, forming the basis of the deed of trust of June 26, 1845, viz : the payment of the Canal Bonds, prin- cipal and interest in the manner stipulated in the said deed of trust. On the 2nd of May the following order was adopted by the Board of Canal Commissioners, and communicated to the Trustees. ^^The Canal having passed from the hands of the Board of Trustees and been taken possession of by the Canal Com- missioners, of the State of Illinois, said Commissioners at a meeting held at the Canal Office, in Lockport, this 2nd day of May, 1871, do hereby Resolve, that the President, Officers and Agents now em- ployed on said Canal, shall retain their present positions, at the same compensations, and governed by the same rules and regulations, from the 1st day of May, until otherwise or- dered. Signed, Eouert Milne, Secretary. On the 16th of May the general account of the Board of Trustees exhibiting all moneys received and expended by them between June 26, 1845, and April 30, 1871, was com- pleted, and certified by each Trustee, and the same was deliv- 1319 ered to the Board of Canal Commissioners, in Lockport, for their examination in the following form: + Slightly modified by a subsequent order. 4531 The Boaed of Teustees of the Illinois and Michigan Canal in Account with the State of Illinois, Be. To the following amounts received on account of the sev- eral items enumerated below between June 26, 1845, (the date of the execution of the Deed of Trust) and April 30, 1871, inclusive: 1 Loan of 1,600,000 dollars, principal and inter- est $1,601,891.90 2 Construction of canal feeders, etc 2,132.25 3 Canal lands, sales, protection, etc 4,706,482.68 4 Maintenance and repairs of canal and feeders 111,003.97 5 Tolls, collections, inspection and salaries 4,405,658.27 6 General expenses and contingencies 3.00 7 Premium on gold for dividends on bonds payable in London 923.27 8 Interest and exchange 181,412.07 Total .$11,009,507.41 No. 3. Includes interest on land notes No. 4. This item is over reported 618 dollars by report of Committee on Accounts May 11, 1869 No. 8. The amount received is for interest on deposit of the Trust fund 1845 to 1871, inclusive. 1871 April 30. To balance due State of Illinois, $95,742.41 The Boaed of Teustees of the Illinois and Michigan Canal IN Account with the State of Illinois, Ce. 4532 By the following amounts expended between the same dates, June 26, 1845, and April 30, 1871. 1 Loan of 1,600,000 dollars principal and in- terest $ 2,153,771.31 2 Construction of canal feeders, etc 1,429,606.21 3 Canal bonds, sales, protection, etc 115,523.23 4 Arrears of interest on registered bonds 2,155,622.38 5 Principal registered bonds 2,195,463.67 6 Maintenance and repairs, canal and feeders 1,853,049.61 7 Tolls, collections, inspection and salaries 160,462.71 8 Canal damages, flowage, etc 22,163.32 9 General expenses and contingencies 421,600.82 10 Premium on gold for dividends on bonds payable in London 370,864.42 11 Interest and exchange 21,073.80 12 Losses on wildcat” currency, counterfeit bills, broken Banks, etc., 1848 to 1863, in- clusive. 14,563.52 13 Balance in hands of Treasurer of the Board of Trustees April 30, 1871 95,742.41 $11,009,507.41 1320 Final Report,— Canal Trustees 1871. — Continued. No. 6. This item over reported 618 dollars by committee on accounts May 11, 1869. No. 11. The amount expended under this head is for pur- chase of exchange in Illinois for remittances in New York. No. 12. The history of these losses will be found stated in the annual reports for the years 1861, 1862 and 1863. 4533 The certificate of the Trustees, appended to the preced- ing general account, was in the following words : ‘‘We the subscribers, constituting the Board of Trustees of the Illinois and Michigan Canal, hereby certify that the above account of moneys received and expended by said Board, between June 26, 1845, (the date of the execution of the deed of trust by the Governor of Illinois) and the 30th day of April, 1871, is correct according to our best knowledge and belief.’^ That is to say, the said Trustees acknowledge that they have received for account of the Trust, and during the period above stated, the aggregate sum of eleven millions nine thou- sand, five hundred and seven 41/100 dollars, (11,009,507.41) and they declare that they have expended ten millions, nine hundred and thirteen thousand seven hundred and sixty-five dollars, (10,913,765), during the same period, leaving in their hands unexpended on said 30th April, 1871, the sum of ninety- five thousand, seven hundred and forty-two 41/100 dollars (95,742.41) for which sum said Trustees are now accountable to the State of Illinois, subject to the payment of any legal liability now existing against the said Board of Trustees. Further, that this balance in the hands of the trustees is deposited as follows: 4534 1 New York Life and Trust Ins. Co $75,498.02 2 Bank of Commerce, New York 1,362.90 3 Bank of Geo. C. Smith & Co., Chicago 17,982.50 4 In hands of W. Gooding, Sec. Bd. Trustees .... 898.99 $95,742.41 Signed W. H. Swift Signed Henry Grinnell Signed R. Rowett. Canal Office, Lockport, May 16, 1871. In addition to the preceding account of moneys received and expended, the Trustees caused three several schedules of canal property, consisting of . machinery, took, buildings, boats, &c., to be prepared for the Canal Commissioners, with the estimated value of each article appended, viz: First division of the Canal 40,935.50 Second do do 14,905.34 Hydraulic Works at Bridgeport 101,986.85 Total valuation $157,809.69 1321 These schedules were subsequently receipted for by the Board of Canal Commissioners, the articles having passed into their hands May 1, 1871. 4535 On the 17 May the following order was adopted by the Board of Trustees: Resolved, That his Excellency the Grovernor be respectfully requested to cause the Board of Trustees of the Illinois and Michigan Canal to be furnished with a schedule, or descrip- tive list of such Illinois and Michigan Canal Bonds, as may be outstanding or unpaid, if any there be at this time, both registered and unregistered. Canal Office, Lockport, May 17, 1871. On the 17th May the Board of Trustees proceeded to Spring- field, to confer with the Governor upon a course of measures which they had proposed to pursue in fulfillment of the part required of them by the Act of April 22, 1871, and to ascer- tain whether the course proposed by them would be accept; able to the State. On the 18th May the Board had an interview with the Governor and received from him the following commounica- tion in reply to the request contained in the Resolution of the 17th May relative to the Canal Bonds. State of Illinois, Executive Department, Springfield, May 18, 1871. The amount of Illinois and Michigan Canal Bonds, regis- tered and unregistered, called in by proclamation January 4536 9, 1871, intended to include all outstanding Canal Bonds, not previously called in, and calculating 85% to have been paid in the registered bonds by the Canal Trustees, was one million, thirty-one thousand, five hundred and eighty-eight 88/100 dollars ($1,031,588.88). The amount of principal paid by the Treasurer of State on said bonds surrendered, is one million, thirty-one thousand, five hundred seventy-one 75/100 dollars ($1,031,571.75). (Signed) Johx M. Palmee. The Trustees then exhibited to the Governor the account of all moneys received and expended by them, as contained in the preceding pages ; also the schedules of property, build- ings, machinery, boats, &c., &c., belonging to the canal which had passed with the canal into the hands of the Board of Canal Commissioners and the 1st of May, 1871. Finally, the Trustees stated to the Governor that a release deed of the canal and all the property of every description appertaining to it, had been prepared by their counsel, Isaac N. Arnold, Esq., that the same had been laid before the At- torney General of the State, W. Bushnell, Esq., for his ex- amination, that he had approved it in all its parts, and that the same would be executed by the Trustees and delivered 1322 Final Report, — Canal Trustees 1871. — Continued. together with the unexpended funds remaining in their hands, 4537 whenever the Canal Commissioners had satisfied themselves that the accounts rendered by the Trustees, of their receipts and expenditures between June 26, 1845, and April 30, 1871, had been correctly stated, and that the same had been certi- fied by said Commissioners, as required by the Act of April 22, 1871. When these proceedings were closed, the Board of Trus- tees adjourned to await the action of the Canal Commission- ers, and to receive from them the accounts of the Trustees, certified in the manner required by the statute before referred to. On the lOtii of August the Canal Commissioners certified and returned the general accounts of the Trustees, dated May 16, 1871, in the following words: — ^AYe the undersigned Canal Commissioners, in accordance with the provisions of the first section of Yin Act to settle up and close the Trust of the Board of Trustees of the Illi- nois and Michigan Canal, approved April 22, 1871, do hereby certify, that the above statement is correct.” (Signed Joseph Utley, Signed Virgil Hickox, Signed Egbert Milne. Canal Office, Lockport, August 10, 1871. On the 16th of August, 1871, the Board of Trustees rendered a supplementary account of their receipts and expenditures 4538 between April 30, 1871, and August 16, 1871, in the same form and certified by them in the same manner that the gen- eral account, dated May 16, had been rendered, and on the 23rd of August, 1871, the Canal Commissioners returned the same, and certified the correctness of the account, in the man- ner and form in which they had certified the general account of the Trustees, on the 16th of May, 1871. The following is a svnopsis of the supplementary account rendered August 16, 1871. The Board of Trustees of the Illinois and Michigan Canal, Dr. April 30, 1871, to balance due State of Illinois this day ^ .$95,742.41 August 16, to interest received from Xew Y"ork Life and Trust Co., between April 30 and August 15, 1871 1,246.95 $97,007.36 1323 The Board of Trustees of the Illinois and Michigan Canal, Cr. August 16, 1871, by amount expended for general expenses and contingencies between April 30, 1871, and August 16, 1871, final closing of the Trust. $ 4,889.77 By paid fee exchange on New York 17.98 Balance in hands of the Trustees this day 92,099.61 $97,007.36 On the 9th of September, 1871, the Secretary of the Board of Trustees delivered to the Board of Canal Commissioners, in Lockport the following documents to be transmitted by 4539 them to the Governor of Illinois: — 1. The general account of the Board of Trustees, from June 26, 1845, to April 30, 1871, certified by the Canal Com- missioners. 2. The supplementary account, from April 30, to August 16, 1871, also certified by the Comimssioners. 3. Letter of the President of the Board of Trustees, to the Governor of Illinois, transmitting the Release Deed of • the Canal, and all property appertaining to the same, dated August 19, 1871, in accordance with the provisions of the Act of April 22, 1871. * Abstract of the Vouchers for these expenditures will be found in the accompanying documents. (A. 1.) Finally, on the 2nd October, 1871, the Trustees paid in New York, the 'draft of Virgil Hickox, Esq., Treasurer of the Board of Canal Comissioners, for ninety-two thousand, five hundrea and forty-five 79-lOOth dollars, (92,545.79) being the amount in the hands of the Trustees on that day, belonging to the State of Illinois. 4540 Deposit in Life and Trust, August 16, 1871 ._. . . 91,262.97 Interest do August 16, to Sept. 30, 1871 446.18 Deposit in Bank of Commerce, New York 836.64 Total 92,545.79 In closing this their final report. The Board of Trustees de- sire to place on record their great obligations to Messrs. Bar- ing Brothers & Co*., and Messrs. Mathewson & Co., (formerly Messrs. Magniac, Jardine & Co.,) the Committee in London, acting for the European subscribers to the loan of 1,600,000 dollars, and holders of Canal Bonds, for the very import- ant services rendered to the Trust, for a long series of years, in paying the dividends on Bonds due and payable in Lon- don, and in rendering other valuable assistance there to the Trustees, in various other matters relating to the Trust, and objects connected directly therewith, all this without pecun- iary compensation of any kind. The following reports and statements, eleven in number. 1324 Final Report, — Canal Trustees 1871. — Continued. were transmitted to the Governor of Illinois, with the re- port of the Board of Trustees, dated October 20, 1871. 1. Eeport of the Treasurer 1st of December, 1871, to Au- gust 16, 1871. 2. Schedules of payments made by the Treasurer for all purposes during the same period. (Two Schedules.) 3. Eeport of the Secretary of the Board of Trustees, do. do. 4541 4. Schedule of lands and lots, sold, do. do. 5. Statement of all property cleared at the several Col- lector's office, do. do. 6. Amount of weekly and monthly receipts of tolls, do. do. 7. Bates of toll established for the year 1871. 8. Schedule of all Officers and Agents employed by the Board of Trustees, with occupation, compensation &c. do. do. 9. Eeport of the General Superintendent for same period. 10. Abstract of all expenditures for maintenance and re- pairs of the Canal and its works, do, do. By order of the Board of Trustees, William H. Swift, President. Illinois and Michigan Canal Office, New York, October 20, 1871. 4542 APPENDIX. Boakd of Tkustees, 1871. William H. Swift, President, New York. Henry Grinnell, Treasurer, New York. Eichard Eowett, State Trustee, Carlinville, 111. List of Officers and Agents employed by the Board of Trus- tees of the Illinois and Michigan Canal in 1871. William Dooding, Secretary of Board of Trustees, etc. William A. Gooding, General Superintendent, A. J. Mathewson, Auditor of accounts and Clerk in Land • office Artemus Grow, Assistant Superintendent and Inspector 1st Division, William Thomas, Assistant Superintendent and Inspector 2d Division, Stephen C. Mason, Collector of Tolls, Chicago W. T. Mason, do. do. La Salle Albert F. Dow, do. do. Ottawa Hale S. Mason, do. do. Lockport G. A. Cozzens, Inspector Canal Boats, Chicago *Wm. Cook, do. do. *L. W. Rice, do. do La Salle Lewis Cook, do. do. do. per $3,000.00 annum *3,000.00 1,200.00 1,500.00 1,500.00 *1,680.00 *1,440.00 *1,200.00 *1,200.00 900.00 per 30.00 month 30.00 30.00 *720 for Clerk hire in addition. *Including allowance for clerk hire and office rent. 4543 *Temporary, $30 per month during the season of navigation. 1325 14. permanent Lock-keepers, at $300 per annum each. For the year 1870 an increase of $1,360 was made to the gross amount paid to Lockkeepers, and distributed in propor- tion to the work performed by each. The Trustees are paid $2,500 per annum each. 4544 The Act of April 22, 1871. An Act to settle up and close the Trust of the Board of Trustees, of the Illinois and Michigan Canal. Whereas, The Illinois and Michigan Canal, and all remain- ing canal property, have reverted, or are about to revert to the State, and it devolves upon the General Assembly to take the necessary steps to insure jurisdiction and eco- nomical management of the same, therefore. Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, that it is hereby made the duty of the Canal Commissioners of this State, upon the termination of the Trust provided for by an Act entitled ^‘An Act to provide for the completion of the Illinois and Michigan Canal,” approved February twenty-first, one thou- sand eight hundred and forty-three, and the Act amendatory thereto, to examine and audit the accounts of the Board of Trustees of the Illinois and Michigan Canal, and if upon such examination they shall find said accounts correct, they shall state the said accounts in full and they together with the Canal Trustees shall certify that they are correct, and shall transmit copies thereof to the Governor, who shall re- port the same to the General Assembly, at its next meeting. Section 2. That it shall be the duty of the Canal Com- 4545 missioner to take charge of and exercise full control over the Illinois and Michigan Canal, from and after the passage of this Act, and to receive from the Board of Trustees afore- said, all the money on hand belonging to the Illinois and Michigan Canal fund, and pay the same into the State Treas- ury, and also to receive such property, books and office build- ings, held by them as such Trustees, and it shall be the duty of the said Board of Trustees to comply with the provisions of this Act, and pay over all such money, and deliver all such property to said Commissioners, promptly upon the passage of this Act: Provided, That any claim for which the State Trustee is now liable, may be prosecuted against the said Commission- ers, and shall be paid by them out of the resources of the Canal. Provided, That all moneys received for rents and tolls, not necessary for the expenses of the canal, and for keeping the same in repair, shall be paid quarterly into the State Treas- ury, and that the rate of tolls shall not be increased without the consent of the General Assembly. 1326 Final Report, — Canal Trustees 1871. — Continued. Section 3. That upon the termination of said Trust, accord^ ing to the provisions of the Act above referred to the said Board of Trustees shall execute under their hands and cor- 4546 porate seal, to the State of Illinois a release deed, of all and singular the remaining property, assets and effects, of every name aud description of said Trust. Section 4. The said Board of Commissioners shall appraise all islands, lands, lots, or parcels of land, belonging to the canal property, not heretofore sold and forfeited, or which may hereafter he forfeited, and report the same to the Gov- ernor, to be by him reported to the General Assembly. Section 5. As appears by the preamble an emergency hav- ing arisen, this Act shall take effect and be in force, from and after its passage. Approved, April 22, 1871. 4547 Counsel fok Complainant. I take it these are all of the same character, and we make the same objection to all of them, as incompetent, irrelevant and immaterial. The Court. Yes. Counsel for Defendant. I otfer a release deed dated August 19, .1871, from the Board of Trustees of the Illinois and Michigan Canal to the State of Illinois of all the remaining property, assets and etfect of the trust, which is signed by W. H. Swift, Henry Grinnell and Kichard Eowett. I offer it from the book, circular 24, of the Illinois and Michigan Canal, bound with the final report of the Board of Trustees, October, 1871. Said document was thereupon marked Snyder Exhibit 3,” and is in words and figures following, to wit: ‘^Kelease Deed. Whereas^ the State of Illinois by virtue of an Act entitled C^n Act to provide for the completion of the Illinois and Mich- igan Canal,’ approved February 21st, 1843, and various Acts of Legislature, of the State of Illinois, amendatory thereof, and by virtue of a certain deed of the Governor of this State, dated twenty-sixth (26th) day of June, in the year of our Lord, one thousand eight hundred and forty-five (1845), and recorded in Mull County, on the first (1st) day of August, 4548 A. D. 1845, in Book M,’ pages 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573 and 574. Did grant, convey to, and vest in the Board of Trustees, of the Illinois and Michigan Canal, ‘The bed of said Illinois and Michigan Canal, and the lands over which the same 1327 passes, including its banks, margins, tow-patlis, feeders, basins, right of way, locks, dams, water power, structures, stone ex- cavated, and stone and material cpiarried, purchased, pro- cured or collected for its construction; and all the property, right, title and interest of the State, of, in and to the said canal, with all the hereditaments and appurtenances there- unto belonging, or in any wise appertaining, and also, all the remaining lands and lots belonging to the said canal fund, or which hereafter may be given, granted or donated, by the General Government to the State, to aid in the construction of the said canal and the buildings and erections belonging to the State thereon situated/ (Eeference being had to said deed for greater certainty.) And whereas the said trust has l)een fully and completely executed and performed by the said Board of Trustees, and whereas by the nineteenth (19th) section of said xVct of Feb- ruary 21st, 1843, it was provided that ‘whenever the trust created by this Act shall have been fully executed and per- formed by the said trustees, the said canal and canal prop- 4549 erty that may then remain, shall revert to the State.’ And whereas it has been made the duty of the said Board of Trustees by an Act entitled 'An Act to settle up and close the trust of the Board of Trustees, of the Illinois and Michigan Canal.’ Approved April 22nd, 1871, upon the ter- mination of said trust, according to the provisions of the Act above referred to — to execute under their hands and corporate seal to the State of Illinois, a release deed of all and singular, the remaining property, assets and effects of every name and description of said trust.’ And whereas said trust is now to be finally closed and terminated in pursuance of the laws above referred to. And whereas all and singular the accounts and transactions of said Board of Trustees have been fully examined and audited, and found to be correct, and the said trust fully and completely executed. Now, therefore, this in- denture, made this nineteenth day of August, A. D. 1871, be- tween the Board of Trustees, of the Illinois and Michigan Canal, party of the first part, and the State of Illinois, party of the second part: WiTNESSETH : That the said Board of Trustees, in consid- eration of the premises do lierelvv" remit, release, transfer and quit claim to the said State of Illinois, all and singular, the Illinois and Michigan Canal, and all its appurtenances, and all and singular the remaining property, assets and effects of every name and descrintion, of said trust, subject never- 4550 theless to all the legal liabilities if any now existing against the said Board of Canal Trustees. Ix WITNESS WHEEEOF, tile Said Board of Trustees, of the Illinois and Michigan Canal, have hereunto set their hands 1328 and caused their corporate seal to be herennto attached, the day and year above written. (Signed) W. H. Swift, ^ ^ Henky Gkinnell, ^ ^ Eichaed Eowett. (Seal of the Board of Trustees of the Illinois and Michigan Canal.) Acknowledged by each trustee, and delivered to the Gov- ernor of Illinois, September 11, 1871. 4551 Counsel for defendant offered a certified copy of the cer- tificate issued to Charles E. Boyer, that he purchased of the board the south fraction of the northwest and north fraction of southeast quarter of Section Number 25, Township 34, Eange 8, East of the Third Principal Meridian, containing 87.06 acres, more or less, dated blank, 1856. Counsel for complainant objected to the introduction of that unless they produce the entire purchase of the quarter, because in the pleading, it is set forth that this man purchased four frac- tional quarters, two of them lying in the southeast quarter, being the land north and south of the river, and some in this northwest quarter. Counsel foe Defendant. Here is the deed to them all. You can follow me on the map, Mr. Starr. Said certificate was thereupon admitted in evidence and mark- ed ‘‘Snyder Exhibit 4,” and is in words and figures following, to wit: 4552 Snydee Ex. 4. $2766. Copy Ordinary Certificate for Land Illinois and Michigan Canal Office Chicago, , A. D. 1856. This Ceetifies, That Chas. E. Boyer has this day purchased of the Board of Trustees of the Illinois and Michigan Canal S fr. N. W. & N. fr. S. E. 7 i: of Section No. 25, in Township No. 34 of Eange No. 8 East of the third principal Meridian, containing 87.06 acres, more or less, at the rate of Seven Dollars and cents per acre,, amounting to the sum of Six Hun- • dred and Nine dollars and forty two cents; that he had paid towards the same the sum of One Hundred and fifty-two dol- lars and thirty-six cents; being, one quarter of said pur- chase money, and also Twenty-Seven Dollars and forty-four 1329 cents, being one year’s interest in advance, on tlie residue of said purchase money; the said Board has also received from said purchaser his three several promissory notes for One Hundred and Fifty-two dollars and thirty-six cents, each, due in one, two and three years, respectively, for the residue of said purchase money — Said notes bearing interest at six per cent per annum, payable annually in advance. And that upon the full payment of the said promissory notes, and the interest thereon, promptly, according to their tenor and effect, the said purchaser will be entitled to receive from 4553 said Board a good and sufficient deed of conveyance of said lot of Land; but in case of a failure on the part of said purchaser to pay such interest, or the residue of such prin- cipal, within twenty days after the same, or any installment thereof becomes due, he shall forfeit said lot and all claim thereto and all payments made on account thereof. In witness whereof, the said Board of Trustees have caused the corporate seal of said Board to be hereunto affixed, and the name of the Treasurer of said Board to be hereunto sub- scribed the day and year first above written. For the Treasurer, A AVm. Gooding, : Sec’ij. Eeceived, Oct. 22, 1860, from the Board of Trustees of the Illinois and Michigan Canal, a Deed for the property above described. Chas. E. Boyer, pr. Hendrich. Note — When a Deed is required, the Receipt may be signed by the local owner, and this paper returned to the Office of the Secretary of the Board, in Lockport, Illinois.” 4554 ‘^General Offices Board of Canal Commissioners, State of Illinois. State of Illinois ) Will County. f I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Records and Files belonging to said Board, do hereby cer- tify that the above and foregoing is a true and correct copy of certificate now on file in this office and in my keeping, as regards the matter herein contained. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 11th day of April, A. D. 1908. (Signed) John M. Snyder, (Seal) Acting Secretary as aforesaid/^ 1330 4555 Counsel for defendant otfered and read the deed to Boyer, dated October 22, 1860. Said deed was thereupon admitted in evidence and marked ^‘Snyder Exhibit 5,’^ and is as follows: Snydek Ex. 5. ‘^Trus 111 & M. Canal 102 Deed Charles E. Boyer Illinois and Michigan Canal Know all men by these presents, That the Board of Trus- tees of the Illinois and Michigan Canal, under the authority vested in said Board by the act of the Legislature of the State of Illinois of February 21, 1843, entitled ‘An Act to provide for the Completion of the Illinois and Michigan Canal, and for the payment of the Canal debt, has sold to Charles E. Boyer the following described tracts of land; to-wit: 4556 The south fraction of the North West quarter and North • Fraction of the South East quarter and the North Fraction of the North M^est quarter and South Fraction of South East quarter of Section Twenty-five (25) in Township Thirty four (34) North of Eange Eight (8) East of the Third Principal Meridian excepting and reserving so much of said Tract as is occupied by the Canal and its waters and a strip Ninety feet wide on either side of said Canal containing One hun- dred and Ninety-six and Sixty one One Hundredths (196 61/100) acres more or less said tracts being a portion of the land granted by the United States by the Acts of March 21 '1827 the 29th August 1842 and the 3rd August 1854 to the State of Illinois to aid said State in opening a Canal to connect the waters of the Illinois Eiver with those of Lake Michigan and by said State granted to the said Board of Trustees of the Illinois and Michigan Canal for the pur- poses set forth in said Act of said State of Feb. 21, 1843. Know Ye also That the said Charles E. Boyer paid to the Treasurer of the said Board of Trustees the sum of Fifteen hundred and fifty six (1556) dollars and fifty two cents being in full payment of the purchase money for said land, and made according to the conditions set forth in the Act of Jan- uary 9, 1836 entitled An Act for the construction of the Illi- nois and Michigan Canal. 4557 In consideration thereof, and the premises, the said Board of Trustees of the Illinois and Michigan Canal has grant- ed bargained and sold, and by these presents do grant, bar- gain and sell unto the said Charles E. Boyer the said tracts of land above designated and described. 1331 '‘To have and to hold the same together with all the rights, privileges, immunities, appurtenances thereunto belonging un- to the said Charles E. Boyer his heirs and assigns forever. In Witness Whereof The Said Board of Trustees of the Illinois and Michigan Canal has caused the corporate seal of said Board to be affixed hereunto and the names of the President and the Secretary, of said Board to be hereunto subscribed this Twenty second (22) day of October in the year of our Lord Eighteen hundred and sixty (1860). W. H. Swift, (Seal) President. Wm. Gooding Secretary A true copy of the original as filed for Eecord January 11, 1861 at 2 o’clock?. M. John B. Davidson Recorder Book 8 Page 356 4558 Copy certified by Fred S. Johnson, Becorder of Grundy County. 4559 Counsel for defendant offered a certified copy, certified by Mr. Snyder, of part of the record of the Board of Trus- tees of the canal, recorded in Becord Book number 5, dated May 14, 1861, page 64. Counsel for complainant objected on the ground that that is too remote and too burdensome to go in here, because it is conceded all around that the deed shows that the trustees had sold this sec- tion of land prior to this resolution, or prior to the making up of this sheet, and that the Act of 1839, if it reserved the river bed and that outside of the meander line from sale, tjie Commis- sioners did not have it for sale; if complainant’s position is correct, they did not have it for sale; if defendant’s position is correct, they had disposed of it, so that he didn’t see how it is possible for these tables and this resolution to bear upon it. The CouKT. I will let it go in. 4560 Said document was thereupon admitted in evidence, marked "Snyder Exhibit 6,” and is as follows: "Snydek Ex. 6. Among the proceedings and a part of the records of the Board of Trustees of the Illinois and Michigan Canal as re- 1332 Record, — Canal Trustees May 14, 1861. — Continued. “corded in record book 3 and dated May 14, 1861, page 64, the following proceedings were had : * # * * * ^Resolved, that the Agent of Canal Lands prepare a sched- ule of all the unsold lands and town lots and that be attached to such tract the value thereof according to his present esti- mate of the same in order to effect the sale thereof upon the terms and conditions presented in the law of February 21, 1843. Resolved, that the lands and lots above referred to be filed in the canal office at Lockport, and that said lands and lots be held for sale there as they may be wanted, upon the terms and conditions prescribed by law as set forth in the Act of February 21, 1843.^ * * * * ^ General Offices Board of Canal Commissioners, State of Illinois. State of Illinois, Will County. I, John M. Snyder, Acting Secretary of the Board of Canal 4561 Commissioners of the State of Illinois, and Keeper of the Eecords and Files belonging to said Board, do hereby certify that the above and foregoing is a true and correct copy of ^Kesolutions^ adopted by the Board of Trustees, May 14, 1861, recorded in Eecord Book number Three (3), now’ in my keeping. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 11th day of April, A. D. 1908. (Signed) John M. Snyder, (Seal) Acting Secretary as aforesaid/' 4562 Counsel for defendant then offered a certified, copy, cer- tified by Mr. Snyder, of the proceedings and part of the rec- ord of the Board of Trustees of the Illinois and Michigan Canal, as recorded in Eecord Book No. 3, of date July 1, 1861, on page 71; in connection with the list, which is also certified by Mr. Snyder. Counsel for Complainant. I object on the same grounds. The Court. They may go in. Said documents were thereupon admitted in evidence, marked “Snyder Exhibits 7 and 8,” respectively, and are in words and figures following, to wit: 1333 Snyder Ex. 7. Among the proceedings and a part of the record of the Board of Trustees of the Illinois and Michigan Canal as re- corded in record book number three and dated July 1, 1861, on page 71, the following proceedings were had: * * * * * The president offered the following resolution: ^The agent of canal lands having completed the estimate of the present value of the unsold lands and town lots, con- templated in the Resolution of the Board, of May 14, 1861, therefore. Resolved, that a schedule thereof, with the appraised value of each tract of land and each town lot, be tiled with the 4563 Secretary of the Board of Trustees and that the price so fixed in each parcel of land, or town lot, be accepted as the MINIMUM price at which the same may be sold at the Canal Office in Lockport to such persons as may desire to purchase and upon same terms and conditions as have been estab- lished by the law and such as have governed in all the sales heretofore made by the Board of Trustees, to wit: 1/4 cost, with yearly interest in advance upon the balance unpaid; the residue in three annual instalments, under penalty of for- feiture of all previous payments if default be made in one. Resolved, that the sales of lands and lots by private entry as authorized by the Resolution of May 14, 1861, be con- ducted by the Secretary of the Board of Trustees, with such assistance from the Auditor and Clerk in the Land Office as may be necessary for the performance of the duty. Resolved, that the Secretary cause the system of Land Sales By private entry at the Canal office to be published in not less than three newspapers, in Illinois, and setting forth, generally, that the lands have been appraised and that a min- imum price for each parcel has been established which can be known by any person desirous of purchasing, either by writing to the Secretary or by calling at the X^anal office ; Resolved, that the 1st day of August next be fixed upon as 4564 the day upon which the system of Land Sales by private entry at the Canal office, shall begin:’ Signed by W. H. Swift in Boston, July 1st, 1861. W. H. Swift. Signed by Henry Grinnell in New York July 2nd, 1861. He;j^ry Grinnell. Signed by Martin H. Capell, in Jacksonville, July 10, 1861. * * * Martin H. Capell. 1334 Generai^ Offices Board of Canal Commissioners, State of Illinois. State of Illinois, Will County. I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Eecords and Files belonging to said Board, do hereby certify that the above and foregoing is a trn6 and correct copy of the Proceedings of the Board of Trustees, July 1, 1861, recorded in Book Number three (3), now in my keeping. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 11th day of April, A. I). 1908. (Signed) John M. Snyder, (Seal) Acting Secretary as aforesaid/^ 4565 Snyder Ex. 8” A LIST OF UNSOLD ILLINOIS & MICHIGAN CANAL LANDS, AUG. 1, 1861, AND MINIMUM PRICE PER ACRE IN COOK, WILL, GRUNDY & LASALLE COUNTIES. Description Sec, . T B Acres Price Fr. W. 1/2 N. E. 1/4 S. of Canal 13 33 1 33.36 $8 W. 1/2 S. E. 1/4 i i i i i i 80 6 E. 1/2 S. E. 1/4 i i i i i i 80 6 Fr. of E. 1/2 N. E. 1/4 S. of Canal [ ‘‘ i i i i 46.88 6 N. W. 1/4 of N. E. 1/4 27 34 i i 40 10 E. 1/2 S. E. 1/4 13 33 3 80 5 W. 1/2 S. E. 1/4 N. E. 1/4 11 33 4 20 7 W. 1/2 N. E. 1/4 25 i i i i 80 7 E. 1/2 N. W. 1/4 i i i i i i 80 7 E. 1/2 S. E. 1/4 i i i i i i 80 6 S. W. 1/4 S. E. 1/4 i i i i i i 40 6 E. 1/2 S. W. 1/4 i i C i i i 80 6 E. 1/2 S. E. 1/4 11 32 5 80 6 W. 1/2 N. W. 1/4 13 i i i i 80 6 N. 1/2 N. E. 1/4 5 i i i i 79.31 64 N. W. 1/4 S. E. 1/4 i i i i i i 40 6 S. E. 1/4 N. E. 1/4 i i i i i i 40 6 E. 1/2 S. W. 1/4 29 33 i i 80 7 W. 1/2 S. W. 1/4 i i i i i i 80 7 W. 1/2 S. E. 1/4 i i i i i 1 80 5 E. 1/2 N. E. 1/4 31 i i i i 80 6 W. 1/2 N. E. 1/4 i i C 1 i i 80 6 E. 1/2 N. W. 1/4 31 i i 80 6 E. 1/2 S. E. 1/4 i i i i i ( 80 8 E. 1/2 S. E. 1/4 i i i 1 1 i 80 7 1335 N. E. 1/4 S. W. Fr4 1/4 i i ( i i i 36.16 5 E. 1/2 N. E. 1/4 33 i ( i i 80 12 W. 1/2 N. E. 1/4 i i ( ( i i 80 12 W. 1/2 N. W. 1/4 i i i i i i 80 12 E. 1/2 S. E. 1/4 i i i i i i 80 8 W. 1/2 S. E. 1/4 i i i i i i 80 7 E. 1/2 S. W. 1/4 i i i 1 ( i 80 7 W. 1/2 S. W. 1/4 i i i i i i 80 6 W. 1/2 S. E. 1/4 35 i i i i 80 6 E. 1/2 N. W. 1/4 3 32 6 81 6 W. 1/2 N. W. 1/4 i i i i i i 81 6 W. 1/2 N. E. 1/4 7 i i i i 80 6 Fr. W. 1/2 S. E. 1/4 S. of Canal 9 33 i i 2.85 6 E. 1/2 N. W. 1/4 29 33 6 80 7 E. 1/2 S. E. qr. ( i i i i i 80 6 E. Ilf. S. W. qr. i i i i i i 80 7 W. 1/2 S. W. 1/4 i i i i i i 80 8 S. E. 1/4 M. E. 1/4 31 i i i i 40 6 W. fr. S. W. 1/4 i i i i i i 40.20 6 Fr. S. of River S. E. fr’l 1/4 3 i i 7 0.91 5 W. 1/2 N. W. 1/4 15 i i 8 80 5 W. 1/2 N. E. 1/4 35 34 8 80 5 E. 1/2 N. W. 1/4 35 34 8 80 5 W. 1/2 N. W. 1/4 i i i i i i 80 5 E. 1/2 S. E. 1/4 i i i i i i 80 5 W. 1/2 S. E. 1/4 i i i i i i 80 5 E. 1/2 S. W. 1/4 i i i i i i 80 5 W. 1/2 S. W. 1/4 i i i c i i 80 5 E. 1/2 N. E. 1/4 27 i i 9 80 5 W. fr. N. E. 1/4 29 i i i i 34 6 E. 1/2 N. E. 1/4 33 i i i i 80 8 W. 1/2 N. E. 1/4 i i i i i c 80 6 E. 1/2 S. E. 1/4 1 i i c i i 80 6 W. 1/2 S. E. 1/4 i i i i i i 80 6 E. 1/2 N. W. 1/4 i i i i i i 80 6 E. 1/2 N. E. 1/4 25 35 9 80 8 E. fr. S. E. 1/4 3 36 10 32 6 N. fr. N. W. 174 & N. fr. N. E. 1/4 25 37 10 98.80 4 Fr. N. of Canal N. W. 1/4 10 8.70 2 E. 1/2 N. W. 1/4 29 37 10 80 10 W. 1/2 N. W. 1/4 29 10 80 10 Fr. N. of Feeder W. 1/2 S. E. 1/4 13 i i 11 7 7 S. W. 1/4 N. E. 1/4 19 i i 11 40 6 N. fr. S. W. 1/4 19 i i 11 94.23 6 E. 1/2 N. W. 1/4 31 38 11 80 10 S. W. 1/4 N. W. 1/4 11 37 12 40 5 S. of Feeder E. 1/2 N. E. 1/4 13 37 12 16.30 4 N. of road W. 1/2 K W. 1/4 3 38 12 31.38 20 S. of road W. 1/2 N. W. 1/4 i i i i i i 51.30 18 1336 Unsold Canal Lands —Snyder Exhibit 8. — Continued. 1/2 S. W. 1/4 i ( C i ( i 80 18 W. 1/2 X. IV. 1/4 9 i i i i 80 20 Fr. IV. of Canal 23 i i i i 103.31 10 Fr. E. of Canal X. W. 1/4 23 38 12 36.44 10 X. 1/2 X. E. 1/4 i L i i i i 76.16 10 S. 1/2 X. E. 1/4 i i i i 80 10 E. 1/2 X. AV. 1/4 25 i i i i 80 12 W. 1/2 X. IV. 1/4 i i i i i i 80 12 E. 1/2 S. IV. 1/4 i i i i i i 80 12 W. 1/2 S. W. 1/4 i i i i i i 80 12 E. 1/2 S. E. 1/4 t i i i i i 80 10 IV. 1/2 S. E. 1/4 ( i i i i c 80 10 Bet’n C. & E. S. W. fr’l 1/4 27 i c i i 3.62 5 BeFn C. & E. X. E. 1/4 33 i i i i 6.66 5 W. 1/2 S. E. 1/4 27 39 i i 80 15 E. 1/2 S. W. 1/4 i i 1 i i i 80 15 W. 1/2 S. W. 1/4 i i i i i i 80 15 E. 1/2 X. E. 1/4 33 i i ( i 80 15 S. of canal E. 1/2 ,.X. E. 1/4 3 38 13 72.64 25 S. of canal W. 1/2 X. E. 1/4 i i i i i i 56.91 25 X. of canal X. IV. 1/4 3 38 13 70.14 25 S. of canal X. W. 1/4 i i ( c i i 66.59 25 E. 1/2 S. E. 1/4 C i < i i i 80 20 W. 1/2 S. E. 1/4 i i i c i i 80 20 E. 1/2 S. W. 1/4 i i < i i 1 80 20 ■\V. 1/2 S. W. 1/4 i i i i i i 80 20 E. 1/2 S. E. 1/4 19 ( i i i 80 15 IV. 1/2 S. E. 1/4 i i C i i i 80 15 E. 1/2 S. W. 1/4 i i i i i i 80 15 W. i/2 S. W. 1/4 i i i i i i 80 15 E. 1/2 S. E. 1/4 21 ( ( i 80 12 W. 1/2 S. E. 1/4 i i i ( i i 80 12 E. 1/2 S. W. 1/4 i i i i i i 80 12 W. 1/2 S. W. 1/4 1 i i i i ( 80 12 E. 1/2 X. E. 1/4 29 i i ( i 80 12 W. 1/2 X. E. 1/4 i i ( i i i 80 12 E. 1/2 X. W. 1/4 i 1 i i i i 80 12 W. 1/2 X. W. 1/4 i i 1 i i i 80 12 E. 1/2 S. E. 1/4 i i i i i i 80 12 W. 1/2 S. E. 1/4 i i i i i ( 80 12 E. 1/2 S. W. 1/4 i c i i ( i 80 12 W. 1/2 S. W. 1/4 i c < < i i 80 12 E. 1/2 X. E. f/4 31 i i ( ( 80 12 W. 1/2 X. E. 1/4 t c i i i i 80 12 E. 1/2 X. W. 1/4 i i ( 1 i i 80 12 W. 1/2 X. 1/4 i i i i i i 80 12 E. 1/2 S. E. 1/4 i i i i 1 1 80 12 W. 1/2 S. E. 1/4 i 1 i 1 i i 80 12 E. 1/2 S. W. 1/4 i i 1 1 i i 80 12 1337 4568 W. 1/2 S. W. 1/4 E. 1/2 N. E. 1/4 W. 1/2 N. E. 1/4 E. 1/2 N. W. 1/4 W. 1/2 N. W. 1/4 E. 1/2 S. E. 1/4 W. 1/2 S. E. 1/4 E. 1/2 S. W. 1/4 W. 1/2 S. W. 1/4 N. of R. W. 1/2 S. W. 1/4 S. of S. W. 1/4 S. E. 1/4 N. W. 1/4 W. 1/2 N. W. 1/4 E. 1/2 S. W. 1/4 W. 1/2 S. W. 1/4 N. E. 1/4 N. W. 1/4 N. E. 1/4 N. W. 1/4 W. 1/2 S. E. 1/4 N. 1/2 N. W. 1/4 S. E. 1/4 N. W. 1/4 i i i i i i 80 12 33 i i i i 80 12 < i i i i i 80 12 i i i i i i 80 12 i i i i i i 80 12 < i i i (. i 80 12 i i i i i i 80 12 i i i i i i 80 12 i i i i i i 80 12 15 39 i i 54.24 50 i i 39.82 15 17 i i i i 40 20 17 39 12 80 20 i 1 i ( i i 80 30 i 1 i i i i 80 25 i i i ( i i 40 25 23 i i i i 40 150 29 i i i i 80 25 33 28 9 80 5 < i i i 40 5 General Offices Board of Canal Commissioners, State of Illinois. State of Illinois, Will County. I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Rec- ords and Files belonging to said Board, do hereby certify that the above and foregoing matter is a copy of a printed slip past- ed on the inside cover of a booh entitled Lands,’’ which book is a register of lands sold by the Canal Trustees from May 9, 1853, to August 12, 1870, and also shows the number of each certificate issued and amount of cash received. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 11th day of April, A. D. 1908. John M. Snyder, (seal) Acting Secretary as aforesaid. 4575 Counsel for defendant offered a certified copy of patents from the United States to Edwin S. Kimberly, dated 1839, signed by Martin Van Buren, certified by the recorder of deeds for Will County. 4576 Objection as having no significance because Canal Commis- 4577 sioners had had possession of property for 40 years. 1338 Snyder, — Direct Exam. — Continued. 4578 The Court. Let it go in. Which said document was received in evidence and is ab- stracted in the words and figures following, to-wit: 4579 Snyder Lx. 9. The United States To Edmund S Kimberly Esq Certificate Patent. No. 1109 The United States of America * * # Whereas, Edmund S. Kimberly ^ has de- posited a Certificate whereby it appears that full payment has been made by Kimberly * * * for The East half of the North West Quarter of Section Six in Town- ship Thirty three North of Eange Nine East in the Dis- trict of lands subject to Sale at Chicago Illinois containing eighty acres * * ^ . Now Know Ye, that the United States of America in consideration of the premises, etc., * * * 4580 Have Given and Granted, and by these presents Do Give and Grant unto the said Edmund S. Kimberly and to his heirs the said tract above described : To have and to Hold unto the said Edmund S. Kimberly and his heirs and assigns forever. * * Given at Washington October 1, 1839, etc. By the President, Martin Van Buren. ( Seal of ) By M. Van Buren, Jr., (land office) Secy. J M Garland Eecorder of the General land Office. Becorded Vol 3 Page 52. 4581 (Certificate of Eecorder of Deeds) 4582 The witness further testified: I have examined the records of the Canal Commissioners and Board of Trustees to ascertain whether any conveyance ap- pears at any time to the Canal Commissioners or to the Board of Trustees of the Illinois and Alichigan Canal, or to the State of Illinois, or the east half of the northwest quarter of Section 6 in Township 33, north of Eange 9 East, in the district of land sub- ject to sale at Chicago, Illinois, no such conveyance could be found by me. I have made an examination as to the same facts as to the west half of the northwest quarter of Section 6, Township 33 North of Eange 9 East, in the district of land subject to sale at Chicago, there is not any such conveyance that I could And. I have examined all the documents. (Objection overruled.) 1339 4583 Said Exhibit 10 is in the words and figures following, to- wit : 4584 ^‘Snyder Ex. 10. The United States To Edmund S Kimberly Patent. Certificate No. 1115 j- United States of America, * * * Whereas Edmund S Kimberly * * * has deposited a Certificate whereby it appears that full payment has been made by Kimberly * * * for the West half of the North West quarter of Section Six, in Township Thirty three North of Eange Nine East in the District of lands subject to sale at Chicago, Illinois, Containing Sixty Seven acres and four hundredths of an acre. * * * Now Know Ye, that the United States of America, in Consideration of the i)remises, etc., * * * Have given and Granted, and by these presents. Do 4585 Give and Grant, unto the said Edmund S Kimberly and to his heirs, the said tract above described. To have and to Hold * * * unto the said Edmund S. Kim- berly and to his heirs and assigns forever. Given at Washington October 1, 1839, etc. By the President: Maeti^st Van Bueen, (Seal of) By M AAn. Buren Je ( State ) Secy. J. M. Garland Becorder of the General Land Office. Eecorded Vol. 3, page 58. 4586 (Certificate of Eecorder of Deeds) 4587 Counsel for defendant offered in evidence the certified copy of the voucher of the State of Illinois to Henry S. Piepin- brink, Sheriff of Will County, at Joliet, Illinois, covering payment of the judgment in the case against Slater and Druley, with the Sheriff’s costs and the costs in the Supreme Court, the total being $956.38, to show by this and other records of the Illinois and Michigan Canal Board of Trustees, that the suit, while nominally a Druley suit, in the name of Druley and Slater, was actually defended by the State of Illinois, and the judgment paid by the State of Illinois. (Objection as incompetent.) 1340 Snyder^— Direct Exam. — Continued. The CouKT. Overruled. (Which said document marked Snyder’s Exhibit 11 was re- ceived in evidence and is in the words and figures following, to- wit :) 4588 COPY: ^‘Snyder Ex. 11.” FOR MAINTAINING AND OFERATIN^G THE IHLINOIS AND MICHIGAN CANAL AND LOCKS IN THE ILLINOIS RIVER. State of Illinois To Henry F. Piepenbrink, Hr. No. 311 Address Sheriff 'Will County, Joliet, 111. 1882 Place but one item on each line of the column. Hollars. Cts. May 31 For amount of judgment rendered in Ap- pellate Court, April 6, 1881, in case of Win. Adam vs Eobert S. Slater & Wm. M. Hruley 800.00 For interest on said judgment Apr. 6/81 to June 10/82, 1 yr — 2 mos. 4 days at 6% 56.53 Paid under protest see Canal Com- missioners Eecord Book under date of June 8, 1882 79.00 For costs in Appellate Court in said case Less amount paid by Canal Commissioners Sep 12/8i 9.60 69.40 30.15 For costs in Supreme Court in said case Less amount paid by Canal Commissioners Oct. 14, 1881 10.00 20.15 For Sheriff’s costs since render- ing of judgment 10.30 Charged to Tolls and Eents 956.38 Examined and Found Correct. The above has been received and the work performed. Wm. Thomas Supt. B. P. Shaw Secy. 4589 Eeceived from the Treasurer of the Board of Canal Com- missioners. Nine hundred fifty six and 38/100 Hollars., In full for the above account, and it is hereby certified that the articles as specified in the above voucher have been furnished to the Board of Canal Commissioners for the use of the Illinois and Michigan Canal, of the Locks in the Illinois Eiver, and that 1341 the prices charged are the lowest market price for the same. Henry F. Piepenbrink, Sheriff. Dated Joliet, Illinois, 6/15/82. Signed Duplicates, approved for payment, 1. 0. Glover, President. General Offices Board of Canal Commissioners, State of Illinois. State of Illinois Will County I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the_ State of Illinois, and Keeper of the Kecords and Files and Seal belonging to said Board, do here- by certify that the above and foregoing is a true and correct copy of Voucher Number Three hundred and eleven (311), issued to Henry F. Piepenbrink, as Sheritf of Will County on May 31st, 1882, of the Board of Trustees of the Illinois & Michigan Canal, now in this office and in my keeping, as regards the matter therein contained. Witness mv hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this Sixth day of June A. D. 1908. (Signed) John M. Snyder. (seal) Acting Secretary as aforesaid. 4590 Counsel for defendant offered in evidence as Snyder’s Exhibit 12 a voucher to G. D. A. Parks, who will be shown to have been the attorney who appeared of record for Slater and Druley in the case of Adams against Slater and Druley, for ser- vices in the case of Slater et al., in the suit of Adams, to $300.00 ; for advance printer’s fees for brief, $40.00; total, $340.00. (Which said document was received in evidence, and is in the words and figures following to-wit:) 1342 Snyde r, — Direct Exam. — Continued. 4591 COPY. ^‘Snyder Ex. 12.’’ FOR MAINTAINING AND OPERATIN^G THE ILLINOIS AND MICHIGAN CANAL AND LOCKS IN THE ILLINOIS RIVER. State of Illinois, T. G. D. A. Parks, Dr. No. 47 Address Joliet, Ills. 1881 Place but one item on each line of this column. Dollars, cts. January 3 To services in case Slater et al. ads to date 300.00 For advanced printer’s fee for brief 40.00 Charges to Tolls and Eents 340.00 Examined and Pound Correct. The above has been received and the work performed. (Signed Wm. Thomas Supt. B. F. Shaw, Sec. Keceived from the Treasurer of the Board of Canal Com- missioners, three hundred and forty No/100 dollars, in full for the above amount, and it is hereby certified that the ar- ticles as specified in the above voucher have been furnished to the Board of Canal Commissioners for the use of the Illi- nois and Michigan Canal, of the Locks in the Illinois River, and that the prices charged are the lowest market prices for the same. G. D. A. Parks. Dated Joliet, Illinois, Jan. 13, 1881. Signed in Duplicates, Approved for payment. (Signed) J. 0. Glover, President. 4592 General Office Board of Canal Commissioners, State of Illinois. State of Illinois Will County. I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Records and Files and Seal belonging to said Board do here- by certify that the above and foregoing is a true and correct copy of voucher No. 47, issued to G. D. A. Parks, Joliet, Illi- nios, January 3rd, 1881, of the Board of Trustees of the Illi- nois & Michigan Canal, now in this office and in my keeping, as regards the matter therein contained. IVitness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this 8th day of June, A. D. 1908. (Signed) John M. Snyder, (seal) Assistant Secretary as aforesaid. 1343 4593 Counsel for defendant also offered in evidence a certified copy of a resolution of the Board in regard to the payment of the judgment and costs, made May 10, 1882. (Objection that it is incompetent, irrelevant and imma- terial.) The Court. It may go in for what it is worth. (Which said document was received in evidence and is in the words and figures following, to-wit:) 4594 ‘‘Snyder Ex. 13.” COPY OF PREAMBLE AND RESOLUTION IN REGARD TO PAYMENT OF JUDGMENT AND COSTS IN CASE OF ADAM VS. SLATER & DRULEY, MAY 10th, 1882. On Motion the Following was Adopted: — Whereas, in the case of William Adam vs. Robert P. Slater and M"m. M. Druley brought in the Circuit Court of Will County at the term W. D. 1878, for the diversion of the water of the Desplaines River from the mill of said plain- tiff and appealed to the Appellate Court, in which court, the judgment of said court was reversed and a judgment ren- dered in favor of said plaintiff for $800, for damages, and costs of suit, which judgment was afterwards affirmed in the Supreme Court on appeal thereto, as will inore fully appear by reference to the report thereof in the 101st. vol. of the reports of said Supreme Court and Whereas the alleged diversion for which said recovery was had was of water supplied to said Slater and Druley under a lease to them executed by this Board dated July 11, 1878, whereby it became equitably and justly incumbent on the State to assume the responsibility of such suit. Therefore resolved, That the said judgment and costs be paid but with a view to saving the future rights of the State, that said judgment be paid under protest. 4595 General Office Board of Canal Commissioners, State of Illinois. State of Illinois Will County. I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Records and Files and Seal belonging to said Board, do here- by certify that the above and foregoing is a true and cor- rect copy from the Record Book No. 4, page 235, of the Board 1344 Snyder, — Direct Exam. — Continued. of Trustees of tlie Illinois & Michigan Canal, now in this office and in my keeping, as regards the matter therein con- tained. Witness my hand and the official seal of the said Board of Canal Commissioners of the State of Illinois, this Sixth day of June, A. D. 1908. (Signed) Johx M. Snydek, (seal) Acting Secretary as aforesaid. 4596 Counsel for complainant stated that he further offered it as a basis of showing hereafter the position taken by these people as to the condition of this river in the tiling of their briefs in the Supreme Court. 4597 Counsel for defendant offered in the report of the Canal Commissioners to the Governor, dated February 16, 1872, from page 17, under the letter D, leases of the 90-foot strip, show- ing leases I think 12 in number in 1871'. (Objection on the ground that they were incompetent, the resolution of the Legislature indicated its purpose, and these leases could not be introduced to show the construction which the Canal Commissioners may have i^ut on that resolution.) 4603 Then follows some colloquy as to whether portions of 90- strip had been divided into lots and sold as such. Counsel for Defendant. This report says 90-foot strip and lots. Colonel Snyder, can you throw any light on that? A. I can. I would suggest that the 90-foot strip, — (Objection to his testimony, as interpreting the document and as not the best evidence.) A. I was going to explain that. The 90-foot strip is the strip on each side of the canal and has always been claimed as the prop- erty of the State of Illinois, and in the leasing of the 90-foot strip it is designated usually by feet, but in these towns that were laid out by the canal, a number of those lots are embraced in the cor- portion of the city and are designated as lots in the 90-foot strip so that these leases of the 90-foot strip and lots would all 4604 be in the 90-foot strip, but in many cases where there is no town, we leased so man}^ feet of the 90-foot strip. Where there is a town and laid out in lots, it is lot and 90-foot strip. Counsel foe Complainant. Q. You have lots in the towns, 1345 that are not in the 90-foot strip also, haven’t you! A. Well, towns laid off should embrace that portion of the 90-foot strip — Q. And also canal lands that were not in the 90-foot strip! A. Yes, sir. The witness further testified: I suppose they would be sold if there was any offer for them. These town, we will take to illustrate, the City of La Salle, the large portion of the City of La Salle is laid out, and addi- 4605 tions were added to it, the town of La Salle, and certain reservations were made and the lots were sold, and in some cases payments were not made and they reverted to the State, and in every case along the line of the canal where there are feeders, or strips in connection with the canal, they are valuable for ice houses, or other purposes, they being the property of the State and are leased for those particular purposes. The 90-foot strip and lot, as I remember, is a term used in making out the reports. The 90-foot embraces the 90-foot and lots, there may have been lots outside, any lots in the 90-foot strip or perhaps, lots outside 4606 of the 90-foot strip. All it stands for is the fact that there were leases made in the 90-foot strip. (Counsel for complainant objected on the ground that the best evidence would be the leases, and that all things of that kind that is done, and has not received the stigma of legisla- tive criticism, is of this very small kind that does not inter- fere with the integrity of the strip.) The CouKT. They are offering it as an admission against you. It is a report to the Governor, and the Governor accepts it, and they, therefore, say the State of Illinois leases certain property. If the State of Illinois said they had leased 100 feet, they 4607 would not have to bring in the lease. (Counsel for complainant further objected that the terms of that lease may be such that it amounts to holding posses- sion of 10 feet or 50 feet during the pleasure of the owner, during the pleasure of the lessor, it would be reported as a lease, and it would not be in conflict with any position that he has taken on it.) The Court. Very well, you will have the benefit of that pos- sibility. 1346 Snyder, — Direct Exam. — Continued. 4608 Thereupon counsel for defendant read Section 7 of Chap- ter 19, ‘‘Canal Improvements of the Illinois and Little AYa- bash Rivers.” “The secretary shall keep the records of the Commission- ers, and perform such other duties as they shall require of him, and copies of all papers, documents and records legally in his keeping, certified by him under the official seal, shall be received in the evidence in the same manner and with like effect as the originals.” And then stated that he offered copies of the deeds which are in the official keeping of the Secretary, and which apparently come under the express language of Section 7 of the act. (Counsel for defendant objected to all these copies of docu- ments of title as incompetent on the ground that the statute only made the records of the board evidence.) 4612 Thereupon it was agreed that counsel for defendant would concede that the deeds were never in fact recorded and coun- sel for complainant withdrew their objection. 4613 Thereupon counsel for complainant read in evidence from the Act of January 9, 1831, entitled, “An Act for the con- struction of the Illinois and the Michigan Canal”, which created the Board of Canal Commissioners, and which provided by Section 10 : “Said Board of Commissioners is hereby constituted a body politic and corporate with full power and authority in their corporate name to contract and be contracted with, to sue, and to be sued, defend and be defended, plead and be im- pleaded in all matters and things relating to them as Canal' Commissioners, and they shall have and use a common seal with such device as the Governor may direct.” And Section 2, of the Act of February 28, 1867 : “The Canal Commissioners so appointed are hereby con- stituted a body politic and corporate, with full power and authority, in their corporate name, to contract and be con- 4614 tracted with, sue and be sued, defend and be defended, plead and be impleaded in all matters and things relating to them as such commissioners; and they shall have a common seal, of such deffice as they may adopt.” And from the Act of 1874, as follows: “For all legal purposes, the said commissioners shall be . deemed officers of the State, in all deeds, contract writings 1347 and acts may be made, and suits prosecuted by them in the name of ‘The Canal Commissioners’ but they shall not be considered as a distinct corporation, or liable to be sued.” Whereupon followed a colloquy between counsel as to the abil- ity of the Canal Commissioners to sue or to be sued. 4617 Counsel for defendant then read in evidence: 4619 Snyder Exhibit 15 All to Whom These Presents Shall Come — Greeting: Whereas, The Board of Trustees of the Illinois & Michi- gan Canal contemplate constructing a feeder for the Illinois & Michigan Canal, from the Kankakee River to the main trunk of the said Canal — Now KNOW YE that John Beard, Senior & Mary, his wife of the town of Kankakee, of the County of Grundy in the State of Illinois, 'being desirous for the construction of the said feeder, in consideration of the premises and of one dollar to him in hand paid by the Board of Trustees of the Illinois & Michigan Canal, the receipt of which is hereby acknowl- edged, have and by these presents do give, grant, bargain, sell, remise, release, convey and quit-claim to the said Board of Trustees of the Illinois & Michigan Canal, the right of way for the said feeder over and through the followng described tract, piece or parcel of land, viz. all the lots in said town of Kankakee through which said feeder shall pass, owned by said Board and also such number of feet in width of land from the center of said feeder on the berm side thereof, and 4620 such number of feet in width from the said center of the Towing Path side thereof, extending the whole length of said feeder through the said above described premises, the said land to be taken on each side of the feeder to be no more than necessary to the proper construction thereof, the plan of the construction to be determined by the Trustees or the Chief Engineer in their employ. To HAVE and to hold the said right of way, and the said land as above described on each side of the said feeder as afore- said, with the appurtenances, unto the said Board of Trus- tees of the Illinois & Michigan Canal, and to their successors and assigns, for the use, construction, navigation, preserva- tion, occupation and enjoyment of the said feeder forever; Provided, however, if the said feeder should not be con- structed over and through the said premises, or, if after the construction of tlie same it should be, by the decision of the said Board of Trustees, their successors or assigns, aban- doned and discontinued, or the route thereof changed so as not to be continued over the said premises then and in that 1348 Snyder, — Direct Exam. — Continued. case, the said land hereby granted shall revert to the said John Beard, Senior, his heirs or assigns. In witness whereof, the said John Beard, Senior, and Mary his wife have hereunto set their hands and seals this 2nd day of April, A. D. 1846. Sealed, signed and delivered in presence of John Beard, Sr. (Seal) Mary Beard. (Seal) M. Benjamin. 4621 Here follows certificate of acknowledgement before Garion D. A. Parks, Notary Public. Here follows certificate of John M. Snyder, Acting Secretary that the foregoing copy is a true copy. 4623 Here follows a deed in the same form from John Kelley and Margaret, his wife, to the said Board of Trustees of the Illinois & Michigan Canal, conveying the right of way for the said feeder over and through the following described tract, piece or parcel of land, viz., the west half of the S. W. quarter of Sec- tion five (5), Township 33 N., Eange 9, East of the 3rd Principal Meridian and also such number of feet in width of land from the center of said feeder on the berm side thereof, and such number of feet in width from the said center on the towing path side there- of, extending the whole length of said feeder through the 4624 said above described premises, the said land to be taken on each side of the feeder to be no more than necessary to the proper construction thereof, the plan of the construction to be de- termined by the Trustees or the Chief Engineer in their em- ploy. 4625 Here follows certificate of acknowledgment by Garion H. A. Parks, Notary Public. 4626 Here follows certificate by John M. Snyder, Acting Sec- retary, that the foregoing is a true copy. 4627 Here follows a deed in the same form from John Beard, elr., and Mary his wife, to the said Board of Trustees of the Illinois & Michigan Canal, conveying the right of way for the said feeder over and through the following described tract, piece or parcel of land, viz., the N. E. ^ of Section 6, T. 33 N., Eange 9 E., of 3rd Principal Meridian and also such number of feet in width 1349 of land from the center of said feeder on the berm side thereof, and such number of feet in width from the said center on the towing path side thereof, extending the whole length of said 4628 feeder through the said described premises, the said land to be taken on each side of the feeder to be no more than nec- essary to the proper construction thereof, the plan of the con- struction to be determined by the Trustees or the Chief Engineer in their employ. 4629 Here follows certificate of acknowledgment by Garion D. A. Parks, Notary Public. 4630 Here follows a certificate by John M. Snyder, Acting Sec- retary, that the foregoing is a true copy. 4631 Here follows a deed in the same form from Edward Hays and Katherine, his wife, to the said Board of Trustees of the Illinois & Michigan Canal, conveying the right of way for the said feeder over and through the following described tract, piece or parcel of land, viz., the E. 4, S. W. J, Section 5, Town- ship 33 N., Kange 9 E., of the 3rd Principal Meridian and also such number of feet in width of land from the center of said feeder on the berm side thereof, and such number of feet in width from the said center on the towing path side thereof, ex- .4632 tending the whole length of said feeder through the said above described premises, the said land to be taken on each side of the feeder to be no more than necessary to the proper construction thereof, the plan of the construction to be deter- mined by the Trustees or the Chief Engineer in their employ. 4633 Here follows certificate of acknowledgment by Garion D. A. Parks, Notary Public. 4634 Here follows certificate by John M. Snyder that the fore- going is a true copy. 4635 Here follows a deed in the same form from Edward Hays and Katherine, his wife, to the said Board of Trustees of the Illinois & Michigan Canal, conveying the right of way for the said feeder over and through the following described tract, piece or parcel of land, viz., the east half of the N. W. fractional quarter of Section five, Township thirty-three. North Bange 9, East of Third Principal Meridian, and also such number of feet in width of land from the center of said feeder on the berm side 1350 thereof, and such number of feet in width from the said center on the towing patii side thereof, extending the whole length 4636 of said feeder through the said above described premises, the said land to be taken on each side of the feeder to be no more than necessary to the proper construction thereof, the plan of the construction to be determined by the Trustees or the Chief Engineer in their employ. 4637 Here follows certificate of acknowledgment by Garion D. A. Parks, Notary Public. 4638 Here follows certificate of John M. Snyder, Acting Sec- retary that the foregoing is a true copy. 4639 • Patrick Fogarty, a witness for defendant, testified as follows: Direct Examination, My name is Patrick Fogarty. I live in Joliet. I first came 4640 there in 1872, then I went away from there. I was around there for three years and then I went to California. I was in California for about five years, and then came back there in 1880. I have resided there continuously since. Well, I worked the first three years I was there, I was working at the stone cut- ting trade, in the City of Joliet in different quarters around there. Well, I came back there in 1880; I worked for five years for the Joliet Stone Company there as the stone cutter, and foreman over stone cutters and foreman in the quarries. Then I started in business for myself, two miles and a half below Joliet, well, some time in 1885 or 1886, I would not say which. I started in at that time in the quarry business. I owned a quarry. I was in partnership with another man down there near what is called Patterson Island, two miles and a half below Joliet. I stayed 4641 there, in with him about two years, then I sold out and opened another quarry down at Kock Bun, about six miles be- tween Joliet — between five and six miles. That quarry is on what is known as Lake Joliet, right at the mouth of Kock Bun Creek, at the northeast bank of the creek. The quarry was on the right hand bank going down stream. I opened that quarry up in 1888. I operated it about eleven years, from 1888 until 1899, or 1898. I 1351 built a bridge across the river there, a narrow gauge railroad and took the stone over to the Santa Fe. The Santa Fe run right opposite the quarry on the other side of the river, not on the other bank exactly, but there is between eight hundred and a thou- sand feet between the Santa Fe and the bank of the river 4642 there at that i)lace. The kind of a place that I built across the river might be called a trestle bridge. I took the posts, timber there, took two posts and set them up like this, put cross- pieces on the bottoms and then took and put the cross-pieces like that, you know, so that they could not sway (indicating), and put out posts down into the water there and drove them down with a big sledge till we got to solid bottom and cut the posts off then so they would be even. This is the point on AYoerman’s Ex- hibit 4, where the railroad bridge is marked, the point where the bridge was built across Lake Joliet (counsel indicating on map). It run pretty near in that way, close by that. It was right by this line but not on the angle that is shown there, more on an angle like that (indicating). It was at the very narrowest point of the lake near about Eock Point, right on the section line. It struck the bridge about fifty or seventy-five feet from the 4643 shore. The first bridge I built was between four and five feet, between the water and the bottom of the stringer; I had 14-inch stringers in. That bridge remained there four years. AVell, I built the bridge in 1888; it was washed out in 1890, and the bridge all stayed there with just the fish plates broke off and the rails that I had on the south side of the bridge. The bridge left out and swung around and all stayed there; I went and put it back just as it was. Then it was washed out again in 1892. Then we took and rebuilt it and raised it up higher and put longer stringers in. I raised it up then so the top of the bridge was about seven or eight feet above the water. That bridge stayed there from 1892 until 1899. I took it out in 1899, so that those bridges that I maintained there lasted there from about 1888 until 1900, about that, a period of about twelve years. And -they stretched clear across the river. These trestle posts were 4644 apart. The first bridge I had in, I had 16-foot stringers. The second bridge I put in, I had 32-foot stringers, except one span in the middle of the river, that was 50 feet. I did not get any authority from anyone to build that bridge across there. 1352 Fogarty, — Direct Exam. — Continued. Q. Does this paper that I show you contain a correct repre- sentation of the bridge as it existed from your quarry across Lake Joliet? 4645 (Objection as immaterial and irrelevant.) The Court. You may ask him what it is. Counsel for Defendant. Now, Mr. Fogarty, state what is rep- resented by those pictures upon that paper just handed to you. A. Well, the lower picture represents the bridge here about as near, I should judge, as it was; and the upper center picture here is a view of the quarry and the other one up here is 4646 of an old building in Joliet that was, built from the quarry. That picture was made I think somewhere in the fall of 1888, as near as I can recollect. You see the date on here, that is the price list that was- printed in 1899, in April, 1899, but to the best of my recollection there was a man down there sketched this in the fall of 1888, as near as I can recollect. It is substan- tially a correct representation of the quarry and bridge across the river there. It was not sketched by an artist and engraved. Counsel for defendant then otfered in evidence the picture of the bridge. (Objection overruled.) 4647 Said document was received in evidence and marked Fo- garty Exhibit 1. (App. II, p. 3904; Trans., p. 6055; Abst., p. 1730.) Q. State whether or not there was any navigation took place up and down through that bridge during the twelve years that it remained there? A. Nothing more than rowboats, fishermen and hunters that went up and down there. As to how familiar I am with the Desplaines Eiver below Joliet, well, I know the river middling well from Joliet down to Mills- dale. Millsdale is the point where the bridge was built across to Treat’s Island, from the south bank of the stream. I did have occasion to consider the matter of floating the stone down that part of the- river. Well, when they started in to build the Millsdale, I wanted to put in a bid on the abutment of it, stone work, and I went down there, investigated it around the head of 1353 Treat’s Island to see whether I could float stone from the 4648 quarry at Kock Run down there or not. Well, I was think- ing about building a scow or flat boat. Counsel fok Complainant. I move to exclude what he was thinking about. The Court. Yes. Counsel for Defendant. That is preliminary, to show the pur- pose of his investigation. Counsel for Complainant. It is objected to. A. How shall I answer it! I went down there and investi- gated to see how deep the water was, to see whether it would he practicable to take a boat of stone down there or not and I found the water was very shallow for a great ways and then I didn’t think I could get the stone down there on the flat boat. Counsel for Complainant. I move to exclude it. The Court. You abandoned the scheme, did you! A. Yes, sir; I abandoned the scheme. I was not considering any particular size boat there at all. I only thought if I could get one that would draw a foot or eighteen inches of water when it was loaded. Q. What was the result of your investigation and soundings down there as to how far you could get down, with such a boat! 4649 (Objection overruled.) Counsel for Defendant. Q. State what you found in your investigation there, Mr. Fogarty! A. Well, I found I could not get wdthin from three to five hundred feet of the head of the island with a boat drawing a foot to eighteen inches of water, the way the wmter was then. As to why I said I could not go down any farther than that, that was because there wms not water enough to get down within from three to five hundred feet of the island; that was the only 4650 reason; that there was not water enough. The bed of the stream there above the head of Treat’s Island was full of— awful stony. There is all sizes there from the size of your two 1354 F ogarty, — Direct Exam. — Continued. fists up to weighing a ton apiece or more, some of them. I was there when the bridge was washed out in 1890. I had a car drift down there that was loaded on the bridge and it struck against the head of the little island. I went down with a team to get the car out and I had a time to get it out of there on account of the rock, stony bottom, and I knew from that that you could not drive in around there and haul a load. Above Treat’s Island, at the time I made this investigation, I think there was from one to two feet of water. I observed the condition of the stream below 4651 the head of Treat’s Island. The channel was narrow and run with a riffle down on both sides, all of those islands. There was a ford there where we used to drive across with a horse and buggy, drove right across from the south side over the big island and then on to the west bank. The condition of the bed was pretty stony. Where the ford was, somebody, I guess, must have thrown the big boulders out. There was lots of big boulders down there below the ford in both places. Counsel fok Complainant. I move to exclude what he says, somebody must have done. The Court. AYhat must have been done, may go out. There is a few in there of big ones and there is other smaller ones. I never took particular notice only here and there where I could see the water would come up and strike them and make a deep fall. There were some that would weigh up to three or four tons. There were some, of course I didn’t call my par- 4652 ticular attention to it because I was not concerned in it, be- cause I couldn’t say exactly how plentiful they were, but I know there were boulders scattered all over here and there. There was some sticking out of the water and more we could see the water breaking over them. Q. How far up stream did you have occasion to go on the river above your quarry? A. Above the quarry? Q. Yes, sir. A. Well, there on Lake Joliet above the quarry? Q. Yes. A. You are going from Treat’s Island way up two miles and a half above. Q. Xow, I am going the other way. A. All right. Then I want to understand. 1355 Q. Do you know the river above where vour quarry was? A. Yes. Q. About how far above! Well, from where the quarry was there up to Patterson’s Island there is all the way — well, from four to ten feet of water. Then when you get up to Patterson’s Island then the water begins to get shallow from there up to near Brandon’s Bridge. You can run on your rowboat up to about Brandon’s bridge, and when you get to Brandon’s bridge the water shallows there, it used to 4653 be, so that you could wmde across there with a pair of boots and would not get your feet wet. That was down from Brandon’s bridge to Joliet; and from Brandon’s bridge up to where the mouth of Hickory Creek comes in. At the time the Brandon’s bridge was built I was in this other quarry down at Patterson’s Island and we furnished a lot of stone that went into Brandon’s bridge, and we run it up on the railroad, we dumped it otf there and then took trucks and hauled it out into the river there on a stone truck. Eight at Patterson’s Island it is four or five feet. It shallows for a quarter or half a mile till it gets up to near Brandon’s bridge, and then it shallows right at the bridge and just below the bridge, and up this way, from there all the way up till you get to about pretty near the city line of Joliet. In the stretch of the river from near Brandon’s bridge up to near the city line of Joliet, you could walk across with a pair of 4654 boots on. You could walk across with a pair of boots on there lots of times for two or three months in the summer time. That was before the drainage water was let in. -The character of the bed of the stream for that stretch is all boulders and rocks. / never went right dotvn to get right down into the river there ^ only they seemed to be scattered all around in there, from what I could see from the bank of the canal. I was never down in the bed of the river there, only I could see the boulders were pretty plentiful. They were exposed. The water did not run over them, the water run around through them. I did not ever try to go up through that stretch of the river with a rowboat or down it there. I have been down the river from below Brandon’s bridge, down around the head of Treat’s Island in a boat. 1356 Fogarty, — Direct Exam. — Continued. I have had experience in navigation somewhat. I was 4655 brought up in New York State on a lake there; Otsego Lake; learned how to run a rowboat and sailboat. I was on the Mississippi, St. Louis to Keokuk, Iowa. On the Sacramento Eiver from Sacramento to San Francisco, ten or a dozen times. 4656 Counsel for Defendant. Q. I will ask you Mr. Fogarty, whether in your -opinion the Des Plaines River between Joliet and Treat ^s Island is capable of being used for ordinary purposes of commerce! Counsel for Complainant. Objected to the question on the ground that there was no foundation laid for an expert opinion. (Overruled.) A. Well, I would have to qualify that, from Patterson’s Island down to near Treat’s Island you could navigate it with a boat drawing from two to three feet of water. At Treat’s Island, when you get down through there you could not navigate it with any- thing but a rowboat; and from Brandon’s bridge up into Joliet it would be a hard matter to navigate it with a rowboat when the water is at ordinary stage. 4657 I have drove up and down the stream below Treat’s Island in a horse and buggy, from there up to the mouth, but I do not consider myself familiar with it. I did not observe the river down near its mouth. I have drove along the road there maybe four or five times with a horse and buggy, and all I could see was what I could see from the road. Right down along the large feeder there. I did not ever know of any commercial navigation being carried on on the Desplaines River. 4658 C ross-Exaniinatio n . I had a bridge across the river. My bridge was built the first one in 1888. It was washed out in 1890, two years afterwards, and that bridge had been built about five feet, four to five feet above the water line. I did not build a new bridge when that had washed out. The fish plates broke off at the south end of the bridge and the bridge all stayed there, and I just put it right back in again as it was, got the same bridge back. It stood then until 1892. Then it was washed out again. I see I was too low down then, and I took and rebuilt the bridge then. 1357 Thereupon counsel for defendant secured permission to ask further questions on the direct examination. The witness testified as follows: 4659 I was familiar with the river up and around Lemont and Komeo, and Lockport. I have known it for years. I have been going up and down there ever since about 1885. I have been fishing up there since they let the water in from the drainage canal, and went across the river there on the riffles without getting my feet wet. I had on ordinary leather boots. Before fhey let the water out of the drainage canal, the condition of the river up there during the summer seasons was very low. This was above Lockport. The drainage water was not going in where I went across. It was lasting from three to four months, from the summer time, sometimes six months. Luring those months, it would not be more than six or eight inches. Sometimes it would not be that. 4660 That was after the water from the drainage canal was put in; that was after the water, drainage water came in above that. It was somewheres above Fitzpatrick’s line in Lock- port. Q. You were fishing up there? A. Yes, sir. Q. Fishing on six inches of water? A. What? Q. Fishing in six inches of water? A. Well, I was fishing along the river there wherever I could find a deep hole. Q. I understood you to say you waded all around there with your boots on? A. No, sir. There was some places it was deeper. I am speaking of the ripples. I am speaking of the shallow places. Q. Did you have big rubber-hipped boots on? A. No, sir; just ordinary leather boots. Q. Waded across? A. Yes, sir. Q. Fishing all the way across were you? A. No, sir; I was not doing any fishing there. I was going across the river, going from one side to the other. I was fishing in the deep places, deep spots. 1358 Fogarty, — Cross-Exam. — Continued. Q. And you looked and found wliere the ford was, the place, and followed it on the ripples across over! 4661 My first bridge was in 1888, washed out in 1890. I re- built it in 1892. Brought the bridge up higher. I placed it about eight feet above that, about that. On the first bridge the spans were fifteen feet, and the next bridge they were thirty-two feet, except one span; I had one span in the middle of the river, was fifty feet, where the water was deepest. About a carload of stones that was washed down somewhere, it was not a carload of stone; it was a dump car that I had for taking away the rub- bish from the quarry and when the water got high in the river I loaded the car and run it onto the bridge to try to hold the bridge down, and when the bridge went out, the car went over into the water and unloaded itself and went down against a little island and I found the car down there and the little scale 4662 boat for loading stone on. I run all of the cars on the bridge loaded, to try to hold it down. The kind of boats I had stone on was scale boats we called them. We just took it, two inch plank and spliced them together like that, spliced them to- gether crossways. They make them different sizes in different quarries. The one I had was 5 feet by 6, or 5 feet by 7, four inch thick plank. When the bridge got away, the car that was on the bridge was upset and emptied itself of stone and then floated down the river. It floated about two miles and a half, and then I went down there and got hold of it with horses and pulled it out. I made the investigation down there below Treat’s Island, or above Treat’s Island. As near as I can recollect, I cannot say positively, I think it was 1895, but I won’t say for certain. It may have been 1894, or 1896. I think it was in Sep- tember or October. I cannot say which it was, the fall of the year. Q. Where was that ford where you say they crossed the 4663 river! I think you say about Treat’s Island where the stones were not in the way. Where I suspected that they had taken up and moved the stones was where the ford was, the ford led right across from the south branch; it was not exactly the south there, but they call it the south. The ford is about 600 to 800 feet below the point of the 1359 Big Island, at Treat’s Island I mean. It was not 600 to 800 feet below the lower portion of that island, the upper j)oint, below the upper point of the island, as near as I could judge. I didn’t see them picking up any stone there and moving them. I don’t know as there had anybody, but the ford had been used for years. I was nearly — Q. But there was a place there where there were no 4664 stones to interfere with travel in the river! A. No; there was no very big ones; but they were not smooth. Q. Not so big, but what you would drive a wagon right over them! A. No, sir. Q. Or ride a horse over them! A. No, sir. I was raised in New York near Otsego Lake. While there I learned to row a row boat and run a sail boat, and I left there in 1871. That would be thirty-seven years ago. I was fifty-nine last May; this May. I was twenty-one or twenty-two years 4665 old when I left there. I was on the Mississippi Eiver once. I said I had rode on the Mississippi Biver from St. Louis to Keokuk just once on the boat, made one trip across it, that is all, came up on the river from St. Louis to Keokuk as a passen- ger. I spoke of being on the Sacramento Kiver. I was on the boat there simply,, as a passenger, that is all, and went from Sac- ramento to San Francisco. I was up and down there I guess ten or twelve times, every time as a passenger, and that was all the waters that I have been on. Q. You do not profess to be very much of a sea-dog, do you on that experience! A. No, sir. Re-direct Examination. 4666 Take those pictures there and you will see a scale boat hanging right on the derrick there. ' They were used for putting row boats down on. They were used on the land. They were merely plank just laid across each other like that and spliced together, and some quarries had them 4 by 6. I had them 4 by 6, and 4 by 7. There wms some iron run across about 18 inches from one end, and another iron in the other end with a loop down 2 or 3 inches^ and we rubel on those to take them over to 1360 the car, take them over to the railroad, hoist them up and dump them into the car. It shows one there hanging on the derrick in the illustration. Q. What was this quarry at Rock Run that you run and oper- ated for some time known as? What was the other name for it? (Objection as not redirect examination. Overruled.) Counsel fok Defendant. Q. What did the people call it? A. Well, there locally the place is known there as Rock Run. That has been the name, that has been the local name. 4667 Q. Did the ^ quarry have a name? A. Yes, sir. Before that time, At didn’t have another name. It was on William Miller’s land. I think, as nearly as I can recollect, it was known as the old Swallum quarry. There was a quarry opened there, near where I was. Re-cross Examination. These boats that I had there did not have sideboards on them, just a flat bottom. Take the paper there, no wheels. Take 4668 the plank like the two thicknesses of your hand, spike them together, then an iron across each end with a loop on each end, an iron here, and a loop here, and hitch it to three chains to go down and pick it up like this, put a chain on each side, and another one like that and pick thehi up and when it was loaded with rubel stone, I. did not haul them on the ground, laid them down in the quarry, laid the rubel on them, then picked them up with the derrick, swung them up and put them on the little car of the quarry and go to the railroad car and hoist them up and put them into the coal car. As to why I call such a thing as that a boat, I don’t know. That is the only name I know for them. They have always bejen called a scale boat. 4669 Amos R. Beockway, a witness for the defendant, testified as follows : Direct Exa min at ion. My name is Amos R. Brockway; I am fifty years old and live in Joliet. I have been in Joliet now about twenty- three years. I mu cannot tell you exactly what year it was I came to Joliet. 4670 Before I lived in Joliet I lived four miles below Joliet. I lived there until after I was twenty-two years old, along in there. I was horn in Will County. I am a livery man at pres- ent. I have been in that business for myself about fifteen years. I know where the Desplaines Elver is. I see it every day, when I am in Joliet. I am in Joliet most of the time. I see the river in Joliet and I see it below Joliet or above Joliet, just whichever happens to be my way to go. My farm is just about a half mile from the river. 4671 When I was a small boy I was within a half a mile of the river. I am pretty familiar with the river clear down to the mouth of the Illinois. I had occasion to see the river down below its mouth because I fished, hunted; I have hauled people up and down there, going fishing, more or less ever since I have been old enough to. There are rapids or shallows in the river below Joliet, from the old Malcolm Dam down below Brandon’s bridge, that is what they call the riffles. Then you have got water, a good deal of water from then down to, — well, just a little this side of Treat’s Island. That stretch of the river just below Brandon’s bridge down to towards Treat’s Island is called Lake Joliet. 4672 Well, the other side of Charley Smith’s bridge are riffles and stones. There is a deep hole, and then on down about a mile and a half from there it goes dry; it used to go dry and wash holes, the fish would get in there and they couldn’t get out until there would come another freshet. Smith’s bridge is about a mile and a half or two miles from Treat’s Island, farther down the river. Below Smith’s bridge you find what they used to call the old ford. There are riffles there. There were riffles all the way be- tween, clear across the full width. Up and down the river it probably was a stretch of about three miles. Below that you would come to stone, big nigger heads. I have sat on them along in the fall of the year and fished in the middle of the river. 4673 That is down below Charley Smith’s, down at the mouth. I was fishing there last year; that was the time I sat on the 1362 Brockivay, — Direct Exam. — Continued. boulders and fished. In places the water was a little over knee deep; in other places it was not over four inches. I am familiar with the river below that down near the mouth. The condition of the river there with reference to the depth of water and boulders is about the same all of the way. There are boulders there, some of which would weigh five tons. There is lots of them. Most of them are exposed; you can see them stick up. Some of them you can see where the water runs over them. I am referring to the Desplaines Elver right at about 4674 where it joins with the Kankakee. You couldn’t used to run a boat through there, at Treat’s Island, only at certain times a year, i. e., wet times, late in the fall, or — You couldn’t run a boat through there excepting in the spring season, because you coludn’t run it on dry land. There was not sufficient water. I am referring to a row boat. There were plenty of boulders in the river at Treat’s Island. A stretch of river over from Bran- don’s bridge up to Joliet is almost a complete bunch of big, round nigger heads and boulders. They are so thick that I would not want to try to take a big one through there. The water between Joliet and Brandon’s bridge in the ordinary summer, in the sum- mer season after the spring freshets are over, before the 4675 drainage water was discharged into the river, would not be over six inches, hardly any place below that, during the last, the rest of the season. I am familiar with the river above Lockport. I have known it about fifteen or twenty years. I married a woman that lived right close to there. I had occasion to go there once in a while, before I was married and since. I used to haul people up there before street cars went through. We used to haul lots of them up there fishing, with the bus, you know. I knew the river up there before 1871; I had occasion to visit it frequently before 1871. 4676 At 9th street, there at Lockport, there was a bridge under water — there would not be water enough there for anybody to take a buggy over and wash it, maybe three months in the year. To take it over there, and further up it was very shallow. When you got up to about Fitzpatrick’s line there, you would find a deep shoal up to Lemont, and there where the Santa Fe 1363 tracks crosses there never was very much water there until the drainage people turned it through there; I don’t know just what year they turned it through. During the season after the spring freshets were over, above Lockport and before 1871, it would not average, on an average clear through, it would not average 12 to 14 inches anywhere hardly. There were places where there was not six inches of wtaer, and other places where it was 4677 completely dry. Above Lockport there must be from three to four miles, two or three, where there would be only six inches of water. I was familiar with the river below Joliet before 1871. At that time, between Joliet and Brandon’s bridge, there might be some places along in there, in that line, in there that it would be prob- ably 8 or 9 feet deep, but it did not run only a short way till it was shallow again. There was about four miles of it there below Joliet down to the Eock Run that was considered pretty deep. Prior to 1871 between Joliet and Brandon’s bridge, be- fore you get to Joliet, there never was any water there to any extent, any certain depth at any time, only just in a freshet. 4678 Sometimes there was not any; it was dry. During the en- tire season after the spring freshets were over, there were some places it would not average six inches of water. When I said there was deep water, 9 feet deep, I did not — I was not re- ferring to that part of the river between Joliet and Brandon’s bridge. The spring freshets, spring floods would usually last in the winter before 1871, a week or two weeks. I had occasion to observe the river below Lake Joliet before 1871. I fished and hunted there. My folks used to take me down there when I was a little fellow. This Treat’s Island used to have a little mound of grapes and goose berries, and there 4679 was nothing, we could drive right across the river to one island, and down through the other, and by dodging around through the stone you could get there all right. During the summer season down on the shallows at Treat’s Island, the water would not come up to the hubs on the buggy. Along the riffles near Smith’s bridge, during the summer season, it might average 8 to 10 inhces. I never knew of any navigation being carried on that river for commercial purposes. I never 1364 Brockway, — Direct Exam. — Continued. saw anything other than a row boat on the river. The only other boat that I ever have known to be operated on that river, was a fellow who had a little cannon sticking on to it, and we got after him — with a cannon in the end of it, and we got a lot of rifles and chased him out. That was above Lake Joliet. 4680 Cross-Exa^nination. I am a liveryman, and have been engaged in that business for about fifteen or sixteen years, for myself. About fifteen. It was along in 1892 or 1893, or 1894 that I commenced. I was a horse- man when I left the farm. I left the farm when I was about 22, or a little past. I had become a horseman before that time. I continued in one line of horseman business from that time 4681 on. From along about 1892 or 1893 back to the time when I left the farm, I was handling horses, and around stables; kind of a hostler, a little of everything. Last year, as late as last year, I was down fishing down there in the river, and sat on the cobble stones, or whatever kind of stone' there may have been, sat on them and fished in the river. The water was not to ex- ceed four inches deejj. I was fishing for suckers; that is where suckers will be caught, and good bass, in shallow water. This was only last year. Q. Don’t you know that the drainage water, the water from the drainage canal has been turned in for about eight j^ears'^ A. Not down in the Illinois River, it ain’t. Q. It does go down there, doesn’t it? A. If it did, I haven’t seen it ; that is where I sat on the stone right near where this dam is being built too. 4682 Q. In the Illinois River? A. Yes, sir. It was about 40 or 50 rods below where this dam was being built. Q. And this water from the drainage canal didn’t come down there? A. I didn’t see any of it. Q. Where do you think it went? Up the Kankakee River? A. It might. Witness. There was one fellow duck hunting with a cannon, in about 1883. He had a row boat, a great, big one, a longer one than usual, and he had a gun on a swivel in the bed of it, you 13G5 know^ and he would get down and sight that on a flock of duck, and it was good-bye to the whole flock. Q. How far could he get them, one, or two or three or four miles? -A. Well, I will tell you: I will tell you: 1 remem- 4683 her one day I was about half a mile below him, and it got so hot in the weeds where I was, it was too many bees for me. 4684 Counsel for defendant then offered in evidence a volume containing the issues of the Chicago American published in the years 1835 and 1836, in Chicago, Illinois; a weekly paper; from the issue of May 14^ 1836, of this paper, an advertisement appearing therein and reading as follows: The heading of the advertisement is: ‘M836 Western Transportation. The New York and Oswego Line. The proprietors of the above line will be prepared on the opening of navigation to forward property from New York by the Eckford Line of tow-boats to Albany daily; thence by the above line of canal boats daily to Oswego, and thence by steamboats and vessels of the first class to any point on Lake Ontario and via the Welland Canal to all ports on the upper lakes. William Sabine having connected himself with a line of transportation wagons from Chicago to the head of Navigation on the Illinois Eiver will forward goods 4685 consigned to him by the above line to any point on the Illi- nois Eiver or St. Louis.” There is a date under that: March 28th.” Then signatures : ^‘E. J. VanDewatee, New York. Johnson Howlett & Co. Foot of State Street, Albany, Up Stairs. Heney Fitzhijgh, Oswego, (Pro- prietors) Eefer to A. B. Meech and Co., Herriman and Nash, Do- remus, Suydam and Nixon, and S. Grosvenor and Co. New York; Meech, Jackson and Co. Albany; Suiter Livingston and Co. Utica; B. B. Hyde and Co. Eome; Noble and Palmer, Manlius; Danfl Spencer and Co. Syracuse; Buckley and Clark, Sacketts Harbour; J. W. Fuller and Co. Alexandria Bay; White and Hooker, Morristown; E. T. Sec and Co. Cape Vincent; E. B. Allen and 0. Bacon, Ogdensburgh; 0. Smith and 0. Hathaway, Youngstown; J. Nevins, Niagara, 1366 Extract, — Chicago American, May 14, 1836. — iContinued. U. C. ; J. Brown and Co. and S. Barnham, Toronto, U. C.;. Truax and Phillips, Kingston, U. C. ; E. P. and D. Smith, W. Barnham, Port Hope; A. Land and D. C. Gunn, Hamilton, U. C. ; H. and S. Jones, Brockville, U. C.; Tracy and Har- rison, Erie, Penn.; T. Kichmond and Co., Kichmond, Ohio; John E. Lyon, Cleveland; J. W. and T. Wickham and J. Fleeharty, Huron, Ohio; M. L. Babcock and Co. Sandusky; John W. Smith, Perrysburg; John L. Whiting, Detroit. William Sabine, Chicago. R. J. VanDewater, agent. Corner of Water and Broad Sts., New York.’’ 4686 (Counsel for complainant objected to the materiality, rele- vancy and incompetency of the matter.) Counsel for defendant then offered : ‘^The same advertisement appearing in the issue of May 21st, 1836, of this same paper; and also in the issue of May 28th, 1836, of this same paper.” (Same objection by counsel for complainant and same rul- ing.) Counsel for defendant then produced another volume contain- ing the issues of the Daily Chicago American published in the year 1839; and otfered in evidence from the issue of this paper published September 14, 1839, the following advertisement: ^‘Notice to Travelers. The traveling public are informed that the mail stage from Chicago to Galena leaves the general stage office at Chicago every Sunday, Tuesday and Thursday and arrives at Ga- lena every Monday, Wednesday and Friday, making it through in two days, and fare reduced to $12.50 for a dis- tance of 156 miles. Fare from Rockford to Chicago $6. Mail stages leave for Dixon’s Ferry every Monday, Wednesday 4687 and Friday, and for Naperville, Warrenville, Geneva and St. Charles same days and return every Tuesday, Thursday and Saturday. From St. Charles the mail line is continued on direct, three trips a week, for De Kalb, Court House, then to Oregon City and Butfalo Grove and there connects with the Peoria and Galena Mail stage, making the line direct to Galena. The mail stage for Milwaukee leaves the general stage office at Chicago every Sunday, Tuesday and Thursday and returns every alternate day. Last, though not least, a daily mail stage leaves the above named office for Peoria and makes the trip from Chicago to Peoria, 170 miles in from 30 to 35 hours, by steamboats and stages — stages from Chicago to Peru and steamboat from Peru to Peoria. Fare, whole distance, $11, and found on board the boat. This line passes through Lockport, Juliet, Ottawa and Utica to Peru. 1367 Extras furnished at all times for nine seats at regular fare. The proprietors will spare no pains to make the traveler comfortable and safe, and hope that if they do justice to the public, by the public they will be supported. (Signed.) E. C. Stowell, Agent for the proprietors.’^ Dated, September 4th.” 4688 It is stipulated by counsel that the same advertisement as last read appears in each issue of the Daily Chicago Ameri- can published after September 14, 1839, up to and including the issue of November 9, 1839. Counsel for Complainant. That is all right. Now we object to it, your Honor, as immaterial, irrelevant and incompetent. The Court. Same ruling. 4689 Thomas T. Johnston, a witness for defendant, testified as follows : Direct Examination. My name is Thomas T. Johnston. I am in my fifty-second year. I reside in Evanston, Cook County, Illinois. My occupation is that of a civil engineer. I graduated at the Rensselaer Poly- technic Institute at Troy, New York, in 1877. On the 1st of January, 1878, I entered the service of the United States En- gineer Corps, in which I remained until June of 1886. In the first half of 1878 I was connected with the improvements 4690 about the Washington monument in Washington City, the work at Washington being particularly with reference to the making of the Babcock lakes in the Washington monument grounds, together with their outlet, lakes and drainage. In July, 1878, I was assigned to duty on a survey of a portion of the Upper Mississippi between Lynchville, Wisconsin, and Sa- vanna, Illinois. In December of the same year I was employed on a short survey on the Missouri River at Atchison, Kansas, and on July 1, 1879, I was assigned to the charge of what was called an observation party on a reach of the Lower Mississippi about 70 miles below Cairo, the reach of the river including a distance of about 40 miles, the duties being to survey and re- survey the reach of river with a view to determining its hydraulic 1368 Johnson, — Direct Exam. — Continued. elements. These duties and assignments were all under the Fed- eral Government until June of 1886. 4691 In the summer of 1879 I spent July and August on the snag boats at Mound City, Illinois, redncmg the notes of the surveys of the previous several months. In September of 1879 I was assigned to a survey of the Gas- conade Kiver in Missouri, which work engaged my attention un- til in December of that year. In the winter, the early winter of 1880, I was in the St. Louis engineer’s office, writing up the notes of the survey of the Gas- conade Elver, and was assigned from time to time to miscel- laneous duties in connection with the study of the physical char- acteristics of the western rivers. In the summer of 1880 I was assigned to the charge of making a survey of the Missouri Eiver in the vicinity of Yankton, Dakota, and of Ennning MM ter, Dakota, or Niobrara, I think it is called. In the fall of 1880 I was assigned to the river improvement work on the Gasconade Eiver in Missouri, of which I had charge of making the survey the previous year, and that engaged my at- tention until December of 1880. On returning from the Gasconade Eiver to the St. Louis office of the engiener corps, I was assigned through the first nine months of 1881 to work in connection with the study of the physical characteristics of the western rivers, incidentally in that 4692 spring making an inspection of the Missouri Eiver from Sioux City to its mouth, with reference to the effect of a considerable flood that occurred in the spring of 1881. In the fall of 1881 I was assigned again to improvement works on the Gasconade Eiver, which engaged my attention until the last of the year. In the beginning of 1882 I returned again to the St. Louis office of the United States Engineer Corps. Through the year 1882 I was on duty in the St. Louis office in relation to the study of the physical characteristics of the west- ern rivers as in previous years, and in the latter part of that year my attention was turned particularly to the effects of the large flood in the Lower Mississippi in 1882. 1369 In 1883 until the middle of the year I was engaged in the same duties as through the year 1882. In the fall of 1883, and until the end of the year I was assigned to duties in connection with improvements on the Missouri Eiver at St. Joseph, Missouri. January 1, 1884, I was recalled to the St. Louis office and 4693 from that time until June of 1886 my attention was given ex- clusively to the continued study of the characteristics of western rivers. In the course of that work I had to do with a good many thousands of gauge readings, a thousand or two measurements of the flow of the western rivers and incidentally studied the question of rivers in general. In June of 1886 I was given a position, with the Chicago Drain- age and Water Supply Commission, as assistant engineer with — as stated in their report, with particular reference to miscellane- ous work and water supply. I remained with that commission until it went out of existence in the summer of 1887. In the course of my connection with the Drainage and Water Supply Commission, I devised the methods by which the Chicago Drain- age Canal was afterwards dimensioned. In February of 1887 I conducted the measurement of the flow of the Desplaines Eiver at Eiverside, Illinois, locating the posi- tion at the point at which the measurments were made, and the methods by which they were taken. In the summer of 1887, as the Drainage Canal Commission or the Drainage Water Supply Commission went out of existence, I was continued in the service of the city as assistant engi- 4694 neer with reference to its water supply until May of 1888. In May of 1888, I was given the position of chief engi- neer of the water supply at Memphis, Tennessee, and at that time devised the scheme that has since supplied that city with water, and I also, as an engineer, constructed the works during the years of 1889 and 1890 — I mean, 1888, 1889 and the early part of 1890, at a cost of some six hundred thousand dollars. The first of April, 1890, I was given a position with the Chi- cago Sanitary District, and my attention was engaged on that work exclusively until December of the same year, at which time I re- signed; hut in the course of that year’s work my attention was 1370 Johnson, — Direct Exam. — Continued. quite largely devoted to a continuance of the processes of and an investigation — of the processes by which the Chicago Drainage Canal was afterwards dimensioned. On leaving the service of the Sanitary District in December, 1890, after doing a little piece of work for the Board of Health' of the State of Illinois, I took charge of the water supply of Savannah, Georgia. That was early in 1891, and as an engineer I devised the works which have since supplied that city with 4695 water and supervised their construction during the years 1891, 1892 and the first half of 1893, acting as consulting and supervising engineer. In the summer of 1891, I was recalled to Memphis as consulting engineer in relation to an extension of that water supply, the do- ing of which occupied the following year or fifteen months. In January of 1892, I was recalled to the service of the Sanitary District of Chicago and remained continuously in that service until the first of July, 1900, as assistant chief engineer, at times acting chief engineer, and during the last two years, or from August, 1898, until July 1, 1900, I was consulting engineer. In the course of my duties with the service of the Sanitary District, I had to look after the hydraulic elements pertaining to that work. It was a part of my business to keep myself posted as to the habits of the Desplaines Eiver. In the course of that work, besides making those investigations and determinations which lead to the dimensioning of the Drainage Canal, I also made investigations and devised the arrangements at the terminus of the Drainage Canal at Lockport, including the sluice gates and the bear trap dam. I also made those investigations which lead to the 4696 dimensioning of the river diversion of the Desplaines Eiver from Summit to Lockport. I made investigations and ex- amination or determinations which lead to dimensioning the work of the Sanitary District through Joliet, and I reported to the Board of Trustees of the Sanitary District the project for the improvement of the Chicago Eiver. In 1895, I was consulted again in relation to the water supply of Memphis, Tennessee, and in the year 1898 I acted throughout that year as consulting engineer for the water supply of Memphis, Tennessee. 1371 Early in 1898 I undertook as the engineer the plans and con- structions of the Snoqualime Falls Hydro-electric Power Com- pany in the State of Washington. I devised the plans for that work, and as consulting engineer, supervised the construction. I remained with that work until July of 1890, two and a half years. In the summer of 1898 I was engaged by the Economy Light & Power Company of Joliet in relation with the construction of their work at the Jackson Street Dam in Joliet, and through Joliet, excepting for a period when I withdrew from the service when litigation was pending; I served through 1898, 1899, 4697 1900 and 1902, the first work having been completed by the end of 1900, and the second work undertaken in 1902. In the year 1901 — in the fall of the year 1901, I was recalled again to Memphis, Tennessee, as consulting engineer and served continuously from that time in that capacity until the first of the present year. In 1901 I also undertook the design and construction as engi- neer of the Swan Palls Hydro-electric Power Plant on Snake Kiver, some thirty miles from Boise, Idaho. The work done at that time occupied about a year, at a cost of about $350,000; and at about the same time I was consulted in relation to water power development at American Falls on the Snake Eiver near Pocatel- lo, and also on the Payette Eiver about twenty miles north of Boise. In 1901 I also undertook the remodelling of the hydro-electric water power plant at Kankakee, Illinois. In that year, the next year, and I think the next year succeeding that I was retained by the electric power plant there, and in the last year rebuilt the dam across the Kankakee Eiver at that point. That was in about 4698 1903 or 1904. I think it was 1904 we built the dam. It was in the last year that we built the dam. In the summer of 1903 — or rather first in the winter of 1902-3 I made plans for and supervised the construction of the masonry aqueduct across the Pecos Eiver in New Mexico; also made an examination of the Gila Bend irrigation project on the Gila Eiver, in Arizona. In 1903 I undertook the design and construction of the hydro- 1372 J 0 lin son,—Bi r ect Exam. — C o n tinned . electric power plant built by the Oliver Chilled Plow Works at South Bend, Indiana. That work occupied all of 1904 and part of 1905. In 1904 I undertook the construction of the hydro-electric power plant for Mr. Conn at Elkhart, Indiana, and was consulted at that time and before and since in relation to a number of water power plants in Central Wisconsin, and also one in New York State on the Oswego Eiver, In 1905 I undertook the extension of the hydro-electric power plant on the Snake River near Boise, Idaho, and was connected with that work through all of 1905. In 1906 I repaired and practically rebuilt the dam on Black River near Cheboygan, Michigan. In 1907 I acted as consulting engineer in relation to a hydro- electric power plant on the Rainy River, in Wisconsin. At the present time in this year I am doing some work for 4699 the City of Chicago in relation to its water supply. In the course of my work I had made plans for and super- vised the construction of the Summit spillway for the Chicago Drainage Canal; Dam Number One at Joliet for the Chicago Drainage Supply; a dam across the Snoqualime River in the State of Washington; a dam across the Snake River in the State of Idaho ; a dam across the Kankakee River in the State of Illi- nois at Kankakee. I have remodelled and repaired the dam across the St. Joseph River of Michigan at South Bend, Indiana; across the Black River at Cheboygan, Michigan; across the Rock River, Beloit, Wisconsin; and I have examined in one way or another in a pro- fessional way dams at Oswego, New York; Holyoke, Massachu- setts; the Davis Island dam across the Ohio River below Pitts- burg, and the next dam below that across the Ohio River, I be- live that Beaver Dam, it is so-called; the dam at Three Rivers on the St. Joseph River in Michigan; Constantine on the St. elo- seph River in Michigan; Elkhart, Indiana, on the St. Joseph River; at Mishawaka, on tlie St. Joseph River in Indiana; at Waldron on the Kankakee River in Illinois; at Kankakee on the Kankakee River in Illinois; a dam in the vicinity of Wil- 1373 mington on the Kankakee River in Illinois; the old dams Number One, Number Two and Adam’s Dam in Joliet; the dam across 4700 the Illinois River at Marseilles; the dam across the Rock River at Sterling; across the Fox River at Dayton; across the Fox River at Elgin; across the Chippewa River at Eau Claire, Wisconsin ; across the St. Croix River, about forty miles from St. Paul; across the Kaushawa River in Northern Minnesota; across the Rainy River at Koochening, Minnesota. I have also inspected, but not in a professional way, the dam across the Mississippi River at St. Paul; a dam across the Pecos River in New Mexico; across the Gila River about thirty miles from Phoenix in Arizona that I recall now. I have also examined a number of rivers in different parts of the country with regard to their habits in relation to water powers and dams of which I have just spoken, and have also had to do in a professional way with the earthen embankment on the river diversion of the Drainage Canal, along the banks of the Illinois and Michigan Canal; to some extent with the levees in the Lower Mississippi; in improvements in relation to the irrigation work at Carlsbad, New Mexico, and with regard to the engineering — the irrigation work to a certain extent near Boise, Idaho, and the reservoir dam at Seattle, AVashington. 4701 The last one I mentioned was the reservoir wall, or reservoir embankment at Seattle, AVashington. The first reference made to the Desplaines River was 1887. I had super- vision over the gauge readings of that year, but I stated that I had charge of the making of the flow measurements of the river at Riverside in the fall of 1887. I cannot state from personal knowledge who established the gauge at Riverside. It was estab- lished in 1886. AVhen I was connected with the Economy Light & Power Com- pany in 1902 I think was the last work I did on the Desplaines River. I had occasion to examine the river with reference to the drainage in the case of the Sanitary District against Adam, where I appeared as a witness for the Sanitary District. That was 4702 a condemnation suit, the Sanitary District condemning the dam. The purpose of that proceeding on the part of the Sanitary District was in part to show the character of the river. 1374 Johnson, — Direct Exam. — Continued. I made an examination at that time. I don^t remember the year of my first experience with the river. I suppose it must have been about 1894, 1895, not far from that time. I had particular charge of the collection of the gauge readings during the time that I was connected with the Sanitary Dis- 4703 trict of Chicago. That covered in all about nine years. I 4705 had immediate sui3ervision over the collection of those gauge readings in my service with the Sanitary District in the year 1890, and from Januanry, 1892, until July 1, 1900. In the period of 1890 Mr. Cooley was my superior officer and I reported to him. I know what relation the regularity of the recurrence of cer- tain stages of water has to do with the possibilities of navigation of the stream in which the water flows. As to stages of the 4706 river when it might, under certain circumstances he navi- gable, recur with irregularity as to time and extent, then in a measure the feasibility of navigation is diminished. As to what gauge readings I have considered with reference to determining the regularity of the flow in the Desplaines Eiver, in addition to those made under my own supervision, I ex- 4707 amined the gauge readings reported for the Desplaines River between 1896 and 1904 inclusive, as published in a gov- ernment document entitled ^‘59th Congress, First Session, House of Representatives, Document No. 263.” I have carried my examination of the gauge readings down until the end of the year 1904. The period when I had supervision over the collec- tion of the gauge readings was immediately preceding this. Including the year 1886, when I did not have in so high a degree supervision over the gauge readings as I did subsequently, they extend from the beginning of the record of that gauge in 1881, down to the end of the year 1904. Q. Mr. Johnston, I wish you would state the result of your investigations, as to the times when a stage of 12.4 feet was re- corded during that period, with special view as to the regularity of the recurrence of that condition. Counsel foe Complainant. To that I object. We had to pro- duce the gauge readings and put them in evidence ourselves. 1375 4708 The Court. Overruled. Counsel for Defendant. In your answer state also what 12.4 feet mean so far as the water in the river is concerned. A. 12.4 feet on the riverside gauge corresponds to a flow of 305 feet per second approximately, passing through the river at that point, and to a stage of the river one foot above the stage at which the flow ceases, or becomes so small as to be of no sig- nificance in that period of time. In the period beginning in 1886 and terminating early in 1896 as tabulated — I have tabu- 4709 lated the results, with the results as follows: That in the month of January the record was complete for six years, and that twice in this period the month of January showed an average flow of 305 cubic feet per second or more. Thereupon objection was made by counsel for complainant that the witness was reading from a memorandum, whereupon counsel for defendant agreed to have typewritten copies of same made and given to counsel for complainant. The witness continued read- ing. 4710 The record was complete for the month of February seven years, and four times the flow reached 305 cubic feet per second or more. In March the record is complete for seven years, and the flow before stated was reached or exceeded six times. In April the record is complete for six years with a recurrence of the flow as before described four times. May, six years, recurrence of the flow three times. June record complete seven years, recurrence of the flow three times. The July records complete seven years, a recurrence of the flow two times. 4712 Counsel for Complainant. I only want to know whether the witness in giving these dates means so many days in each of these months. I do not understand the answer. I want to know, Mr. Johnston, whether these days you are giv- ing are the days for each month of each year or not? You speak about the seven years in your answer, and that confuses me so 1376 J olinson, — Direct Exam. — Continued. that I don’t understand what yon mean. Do you mean now, so many days for the month of March each year for the seven years, or during the month of March for a certain year or the month « of April. If you will kindly make that clear to me I will he obliged? A. I referred to the whole month in each year. The 13eriod covers some nine years and the records were not com- plete in every month of every year, and I was stating the num- ^ — . her of months first in which the records were complete for the whole month, and then — The Court. That is, the number of months — the number of Januaries, in those nine Januaries in which the record was com- plete for the whole month? A. Yes, sir. 4713 Q. That is, there were six Januaries out of the nine in which there were complete records for the whole month. A. Yes, sir. Q. For every day of the month? A. Yes, sir. Counsel for Complainant. And you are giving the number of days now in each of these Januaries, or the average for these Januaries, during these seven years. A. No, sir, I am giving the number of times that the average flow for January reached or exceeded 305 cubic feet per second. Q. In the six or seven years as the case may be? A. In six or seven years as the case may be. Counsel for Complainant. That would mean two Januaries out of the period? A. Yes, sir. Q. The whole of the month of January? The Court. Q. You mean twice during the entire month of January or on a number of days in all of the six Januaries, that would be in the number of days, in a hundred and eighty days — A. No, sir, it would be the average for January twice. 4714 Q. The average that is, of the six — two out of the six — two Januaries out of six show an average of 305 or more?. A. Yes, sir. 1377 Counsel foe Complainant. For a montli, yoiir Honor, as I nnderstand it, not the days in the month, but for the month? A. For the month. The CouET. Q. For the entire month? A. The flow of the month divided by the number of days. Q. By the number of days in the month? A. Yes, sir. Counsel foe Complainant. Now, go on. A. The August record complete in eight years, in no one month or at no time rather, did the flow occur as before described; and also in September the record was complete for eight years and in no one month of September did the flow average as much as before described. For October the record was complete nine years, and the flow above described recurred but once. In November the record was complete for eight years, and at no . time did the flow above described recur. For the month of December the record was complete five times, and the recurrence of the flow only once. 4715 In a total of 84 months — I should have said five years — The record was complete for 84 months in this period and in 26 of those months the flow averaged 305 cubic feet per second or more. Thirteen times the average flow of 305 cubic feet per second or more occurred in 25 winter months, the winter months being December, January, February and March. The other 13 times occurred in 59 summer months. Four times it recurred in two consecutive months and only once for three consecutive months during the eight summer months. That answers the question as far as the record of the average readings goes, as before stated. The CouET. That is, out of 25 winter months the river 13 times reached 305. 4716 A. Four times in the period in the summer months with the flow recurring two months in succession ; once it recurred three months in succession. The CouET. Q. Never oftener? A. Never oftener. 1378 Johnson, — Direct Exam. — Continued. I have made a further tabulation from the gauges — this covers the period when I had supervision of the — although in the record of 1886 I did not have the supervision over it in as high a degree as I did subsequently. I have examined the gauge readings at Eiverside as printed in congressional document entitled ^^59th Congress, First Session, House of Eepresentatives, Document No. 263,” for nine years, 1896 to 1904, inclusive. The record is given complete in all these months, in all of the months for all of these years, and I have taken and picked out those months in which the gauge readings average 12.4 feet or more on the Eiverside gauge, which 4717 would correspond to a flow of 305 cubic feet per second or more. In this table, the record being complete for each of the nine years, the average gauge reading 12.4 feet recurred in two Januaries; six times for February; eight times for March; eight times for April; twice for May; three times in June; twice in July; no times in August; twice in September; once in October; twice in November and once in December, a total of 108 months, and the average gauge reading of 12.4 feet recurred 37 times in that period, of which 17 times were in the four months and 20 times in the eight summer months. That is for nine years next succeeding the period that I have testified to in the other table. Four times this average gauge reading recurred two months in succession, and once three times in succession. There never was a period when it occurred for more than three months in succession in the summer months. In all the years where these gauge readings are shown there are certain months when no water passes the gauge. Of 4717a given month in each of these years there will be times when no water passes the gauge; either that — that is abso- lutely true, frequently, but very frequently when there is either no water flowing or the quantity is so small as to have no signifi- cance. The Court. Q. You mean so small as not to be recorded on the gauge? A. Yes, sir, as not to be measureable on the gauge of the river. 1379 4719 The gauge most all of the time has been a staff gauge. At one time there was what was called a self-recording gauge, established at Eiverside, at the site where the staff gauge is located, something like a quarter or a half a mile from the railway station at the bank of the river. The staff gauge is a piece of wood x^er- haps four inches wide and three-quarters of an inch thick, upon which are marked the distance of feet and fractions of feet. That is fastened to a post or nailed to a tree or otherwise, held in posi- tion so that one extremity of it is always in the water, the site being chosen where the bed of the river is a little lower than in other places, so that if there is no water at all in the river, the end of the gauge would still be under water. The gauge readings taken on the gauge indicate — the reading on this rod or 4720 staff where the water siuTace at any time may happen to be, having all of the gauge readings at a given gauge, the read- ings have a relative significance as to the river being higher or lower. It is the engineer’s object to run levels and determine where the elevation of the mark of zero on that gauge would be with reference to some datum which is in common use in the region for making those reference, as for instance, Chicago datum. On that gauge the point of no flow is marked about 11.3 above Chicago datum, or very closely that. Those figures that I have been giving are on 12.4 feet, I have run on that gauge. The zero of that gauge had reference to Chi- cago datum, and a reading on that gauge corresponding to no flow would be 11.3, very close to that. When the water was 12.4, it would be 1.1 foot deep, about a foot and If inches. Counsel for Defendant. Q. Now, as I understand you, the gauge is set in a hole or place steeper than the ordinary bed of the river, so that water will be flowing over it in days 4721 that it would not in the ordinary bed of the river, is that right? A. Standing around the gauge even if there was no flow in the river. The Court. Q. You record all measurements then above the zero, do you? 1380 Johnson, — Direct Exam. — Continued. A. Yes, sir, above the zero of the gauge. The first reading on the gauge is the lowest reading ever con- tained in the record. The , gauge would be 11.3 feet and none of the readings below that point would be noticed. The CouKT. Q. 11.3 would reach the minimum I A. That would correspond to no flow. The CouKT. Q. AVhat is it you say as to the zero of the 4722 gauge in reference to Chicago datum! A. In this case it is Chicago datum. Q. And then what is your — how many inches did you say! A. 11.3 feet. Q. What is that 11.3 feet in relation to that river! A. Simply at the point to be marked on that gauge at which no flow takes place. Q. But does it mean no water! A. That means no water or not enough water to be measured on the gauge. Q. That is not enough water to flow! A. Or to raise the river above a level corresponding to no flow in any degree that can be measured. For instance, a one-hundredth of an inch could not be measured or would not be measured. Q. I understand, but what is not clear to me is this: When there is no flow of the river, does that mean that except in pools the thing is dry, that you could walk across the stones, walk across the bottom of the river without wetting your feet unless you stepped into a pool! A. Yes, sir, usually means there would be points where you could cross — Counsel for Complainant. That would depend on the slope of the bank! 4723 The Court. I am asking him whether the elevation of the bed at this Eiverside gauge is this level of 11.3 feet above Chicago datum. - 4724 The Court. Q. Do you know whether that gauge is on a ' level at zero with the bar! A. No, the zero of the gauge is considerably below the bar, ten or eleven feet. 1381 Q. Ten or eleven feet below the bar! A. The zero of the gauge, yes, the lowest reading that the water r-^aches on that gauges reads 11.3. Q. I mean, of course, is the 11.3 feet on that gauge on a level with the bar! A. On a level with the crest of the bar; yes, sir. Q. Zero, is Chicago datum! A. Zero is Chicago datum. Q. 11.3 on that gauge which is to represent the beginning of the flow of the river is on a level with the crest of that bar that forms the border of the pool into which the gauge measurement, the gauge stick is placed! A. Yes, sir. Q. Is that right! A. Yes, sir, on a level with the lowest point on the crest of that bar. 4726 Q. You mean the lowest point over which any water can flow! A. Yes, sir. Counsel for Defendant. What I want to get at and the ques- tion we started with was whether in each month in each year of the nine years fhat you have a record whether or not there were times in such months when no water flowed over the bar! A. Yes, sir. Q. That iSy in each month in each year of the nine years there tvere times in such months uhen no icater ivent over the bar, is that corrects A. Well, that is not the ivay I understood the ques- tion before. That may or may not be entirely true. . The Court. Q. That ivoidd depend upon the daily readings, and you have not given us that? You have only given us the aver- age for the month? A. That is all, and I do not know whether 1 am prepared noiv to ansiver that question. 4728 The court then held that the 1905 Government Deports al- • ready introduced in evidence were the best evidence. Witness. I spent a considerable portion of time in studying the habits and characteristics of western rivers. That was for the Government of the United States. The object of the studies was to devise processes and ways in which to accomplish river im- provement. I took notice of the habit of the river for that pur- pose, in fact. 1382 J ohnson, — Direct Exam. — Continued. Q. Wliat, Mr. Johnston, if you know, are the elements to be considered in determining whether or not a river is navigable in fact. 4729 Counsel fok Complainant. I think this is cross-examina- tion. The CouKT. No, I think not. He may answer. A. The quantity of water that may flow in a stream, the extent of the boundaries of the stream, or in other words its confines ; the regularity with which different stages of the river may recur, whether they recur in periods when the river can be navigable or when it cannot be navigable on account of ice, and also the declivity of the river in relation to the narrowness of its confines and the declivity constitutes I believe in general the elements that would be called for by the question asked. The character of the bed, whether rocky or sandy, or of boulders would be an element also. I am familiar with the Desplaines Eiver for about all of its length from its headwaters to the junction with the Kankakee Eiver. Q. Will you state whether or not in your opinion the T)es- plaines Eiver is navigable for the purposes of commerce! Counsel fok Complainant. That we object to, if your Honor please. It calls for an opinion and for his opinion, not on the case stated, but on facts not stated, because there is no founda- 4730 tion for his opinion as an expert in navigation,- and the an- swer is irrelevant, incompetent and immaterial. The Court. He may answer. A. It is not. Counsel for Defendant. Q. Has it been at any time since you have known it! A. No, sir. Counsel for Complainant. I object. I suppose it may be taken that the objection as made to this first question may stand to all questions without repetition. The Court. Yes. Q. Why in your opinion is it not navigable! A. The upper Desplaines Eiver aEove Eiverside is not navigable because of the 1383 small quantity of water that flows in it most of the time; also on aeconnt of the narrow confines of the river bed; also of the irregularity with which certain stages of the river recur when it otherwise might be navigable, when they recur with reference to time and extent; also because the recurrence of those periods when the river might otherwise be navigable is for so much of the 4731 time in the winter months. The river between Eiverside and Lemont in what is known as the twelve mile level would not be navigable for these same reasons, except as to the narrow- ness of the confines of the river. The river from Lemont to its junction with the Kankakee would not be navigable for all of the reasons which apply to the upper Desplaines above Eiverside, and in addition because of the declivity of the river being in general so steep and the nature of its bed so sinuous and rocky or ob- structed by boulders in a degree that would render its navigation dangerous. The declivities extend from Lockport to Lake Joliet, a distance of about eight miles, approximately that. The fall from Lockport to Dam No. 1 is about forty feet, in four and a half miles. From there to Lake Joliet, a distance of about three and a half miles, the fall is twenty-one feet. To Lake Joliet, a distance of approxi- mately five miles, there is no fall at low water. At the foot of Lake Joliet down through Treat’s Island for a distance of a mile the fall is about nine and a half feet, and then a distance of 4732 about a mile with no fall, and a distance of another mile with two and three-fourths feet fall, and a distance of about three miles with about two feet of fall, and then a distance of half a mile with about three feet fall. The bed of the river at that point is of boulders. The current is very rapid. It is south of where this Economy Dam is being built. Between Dam No. 1 and Lake Joliet the minimum width of the river, before the drainage water was poured in, was perhaps sixty feet. The character of the bed of the stream there would be, bar- ring a little dirt on the surface of the bed of the stream, rock and boulders. There were islands below the old Adam Dam, from there to Lake Joliet. The characteristics of the islands, — 4733 are principally of boulders, with some dirt and maybe a little brush growing on them. The bed of the stream was usually of boulder formation. 1384 Johnson, — Direct Exam. — Continued. The river at Treat’s Island was split up by islands with chan- nels irregularly passing through them with a rapid current pass- ing in the channels, which were perhaps a hundred feet wide, or such a matter; and its sinuosity was quite crooked. There were boulders there. What the slope may be would depend something u])on the distance or the length of the river taken into consider- ation. The slope of the river in general from Dam No. 1 to Lake Joliet is about eight feet to the mile, but at places in that reach of the river the declivity would be quite a good deal more pre- cipitous, say in a distance of 100 feet or such a matter. 4734 The general fall at Treat’s Island in that region was in a mile there say about nine and a half feet; some places in a distance quite a good deal more, some less. The maximum slope there per mile was I would judge, from having looked at it with- out measuring it, it might run say to fifteen or even twenty feet per mile for a short distance. Thereupon counsel for complainant moved to exclude it, on the ground witness did not measure it and does not know and puts it in as a guess. The Court. It may stand. Counsel for Complainant. If the court please, where a man is put on as an engineer to give measurements and says ‘‘I do not know, I just looked at it” — The Court. It stands only as an estimate, according to his statement. Witness. As a rule points of steep declivity become drowned out as the stages of the river rise. 4735 Q. Would it be true then that a river which retained a higher stage or a high water stage for a considerable period might be navigable even though its slopes were very steep! Counsel for Complainant. To that I object, your Honor, as suggestive and leading and improper generally, I think. The Court. He may answer. A. That is true. Witness. The Desplaines in the neighborhood of Eiverside, at the Eiverside gauge, would not be affected at all or could not 1385 have been affected by the deep cut, the diversion of the Desplaines, the deepening of the Illinois and Michigan Canal, or the building of the Sanitary Canal or the Ogden ditch, — because the Eiverside gauge is at an elevation above the field of influence of the causes I have just named. The construction of the Illinois and Michigan Canal opened in 1848, with special reference to the question of percolation, 4736 would not, in my opinion, have and influence on percolation from the Desplaines Kiver. It would not affect at all the discharge of the Desplaines River, in so far as percolation is con- cerned. In cutting off a part of the drainage basin of the Des- plaines River south of the Illinois and Michigan Canal, it would have some influence, but a very little, because the flood waters from the region in question would naturally run off in the earlier periods of any rise in the river and be gone before the low waters from the head waters of the stream would come down. The character of the river is that they rise generally very quickly and subside with greater or less rates of rapidity. The higher stages subside quite rapidly as a rule. The flow of the extreme maximum to midstate would ordi- narily diminish within the record within three or four days, and a rise of that kind, without any supplemental flow of water from another point would ordinarily have flowed off in that time. 4737 The cutting of the Chicago Divide in 1852 near Kedzie ave- nue had the effect of causing the waters of the river to flow away somewhat faster than they would have done naturally, to the extent that the reservoir capacity in the Mud Lake District was destroyed. The extent to which that influence would be exerted would depend upon several considerations, particularly the rate at which the river might naturally be subsiding; but taking that influence in connection with the other similar influence in the other twelve mile level, and the influence of cutting off the basin or that part of the basin south of the Illinois and Michigan Canal, and the influence of the Ogden Dam, and summing them altogether, the duration of the low water stages would not in my opinion be affected by the presence or absence of those influences by more than ten per cent, at any time. 1386 4738 In my opinion the deepening of the canal in 1866 and 1871 did not have any effect upon the amount of water discharged into the Desplaines Eiver. The river diversion of 1892 and 1894 eliminated substantially the reseiwoir capacity of the twelve mile level to which I have already referred. The opening of the Sanitary Canal in 1900 had no other 4739 effect than what was involved in the drainage canal, in the river diversion, except one. JOHX" M. SXYDEE, recalled for further direct examination by counsel for defendant, testified as follows: I have made an examination of the records of my office with a ffiew to ascertain how many of these leases and what leases that are listed in these various canal reports, reports of the Canal Com- missioners under the heading, ‘‘Leases of 90 Foot Strip and Lots” are leases of the 90 foot strip. I am able to check in pencil on the tabulation, very nearly all of these Canal Commissioners’ re- ports the particular list that is a list of the 90 foot strip. Counsel foe Defendant. On the assumption they have already been checked, in order to save time, I will offer in evidence 4740 the list of leases of 90 foot strips and lots contained in the annual reports of the Canal Commissioners, which I have here before me, and which runs from the report made in 1872 down to the report made in 1902; and ask that so much of the tabulations of those leases be copied in the evidence as has been or will be checked by Col. Snyder, as being leases of the 90 foot strip. (To that counsel for complainant objected and asked the privilege of cross-examination.) C ross-Examination. I have a book showing these leases in our office. It generally shows what particular part of the 90 foot strip are the leases con- tained in the list. We have some of the old leases in our possession. 1387 I haven’t any clear back, I don’t know anything about it. I have a portion of them. It is quite a large proportion of them. 4741 (Counsel for complainant objected to these reports as not being the best evidence on the one hand, the leases them- selves being the best evidence; and furthermore objected to them on the ground that the complainant was entitled to know what the property is that is leased. The fact of a list of something or other is not as proper as to know what property is leased; and it was further insisted that the mat- ters which are the subject of the present offer and objection are irrelevant, incompetent and* immaterial.) (Thereupon said objections were sustained by the court.) 4744 Counsel for Defendant. I showed Colonel Snyder three documents purporting to be leases made by the Board of Canal Commissioners of the State of Illinois, one purporting to be a lease to Herbert S. Norton, dated 14th of April, 1894; one purporting to be a lease to Michael Kavanagh and Samuel Bus- sell dated the 27th of November, 1894; and one purporting to be a lease to the Illinois Steel Company, dated the 25th of June, 1892; and asked the witness whether those leases were actually made or not, — to which witness replied, ‘‘Yes, sir, they were.” 4745 Those are the original leases, executed by both of the parties. They are held in my possession as secretary of the Board of Canal Commissioners. Counsel for Defendant. I offer these in evidence, if the court please. Counsel for Complainant. I object to these because they are not leases, not valid leases. On the face of them it purports to be from the Canal Commissioners to somebody, and it is signed by individuals, and I say they do not make a lease. Counsel for Defendant. Well, in the regular way, those leases were executed in duplicate and that is the copy retained by the Canal Board ; this copy being executed by the lessee. The Court. I will admit these. They are under the seal of the Canal Commissioners, signed by somebody purporting to be president, and somebody purporting to be secretary. The inden- ture is recited as being between the Canal Commissioners; that 1388 Snyder, — Cross-Exam. — Continued. and the seal in itself would be sufficient, without the signature, I believe. But the interpretation of president and secretary in con- nection with the seal and this recital is that they are president and secretary of the Canal Commissioners. Counsel for Complainant. Put in the objection they are 4746 incompetent, immaterial and irrelevant. The Court. That I will overrule. Counsel for Complainant. It may be understood that goes to all these matters in the oral proof. The Court. Yes. Counsel for Complainant. Let the objection further recite that it is objected to because the signature of somebody, with the name president under it, and somebody else with the name secre- tary under it, even though a corporate seal is attached, does not make a valid lease in the name of the Canal Commissioners of Illi- nois. That is my objection. On its face it purports to be a lease by the Canal Commissioners, but it is not signed by them. Whereupon said leases were marked respectively ‘‘Snyder Ex- hibits 20, 21 and 22” and are in words and figures as follows: 4747 Snyder Exhibit “20.” This Indenture, Made and entered into this 25th day of June, in the year of our Lord one thousand eight hundred and ninety-two, between The Board of Canal Commissioners OF THE State of Illinois, of the first part, and The Illinois Steel Company, a corporation organized and existing under the laws of the State of Illinois, of the second part, Witnesseth: That the said party of the first part, for the consideration hereinafter mentioned, agrees to lease unto the said party of the second part, for the term of twenty (20) years, that is, from the first day of July in the year of our Lord one thousand eight hundred and ninety-two until the first day of July, A. D. 1912, all the right the State of Illinois po of the erved ninety t strip lying on the East or berm side of the Canal, in Section 3, in Township 35 North, of Range 10 East, described as follows, viz: Being west of and adjoining the property belonging to the party of the second part, commenc- ing at a point 325 feet north of the south line of Section 3, T. 35, E. 10, and extending up the canal for a distance of 2,675 1389 feet, measured along the canal bank, to the east and west center line of said Section 3, the same being more particularly shown on a map hereto attached. And the said party of the second part, for the use and occu- pation of the said tract of land, does hereby covenant and agree to and with the said party of the first part that it will 4748 pay to the said party of the first part, as rent, the sum of Five Hundred Dollars ($500.00) per annum, payable annu- ally in advance upon the first day of July of each year dur- ing the continuance of this lease. It is further covenanted and agreed, on the part of the said party of the second part, that it will not re-let said Tract of Land, or any part thereof, without the consent, in writing of the said party of the first part. It is further agreed, That the party of the second part shall erect no buildings, wharves or other structures, that will in any manner obstruct the free navigation of the canal, or a passage ten (10) feet in wddth along the margin of the same for a tow-path or other Canal purposes. And it is further expressly agreed by and between the SAID PARTIES, That the party of the first part shall have the right at any and all times to enter upon the premises hereby leased, and use the whole or any part thereof, for the pur- pose of enlarging the Canal or repairing or changing the banks of the same, upon the condition that the rent shall be ' proportionately abated for the time and part of the premises so re-taken and used. It is FURTHER, COVENANTED AND AGREED BETWEEN THE SAID PARTIES, That in case of non-payment of rent, or any part thereof, as the same falls due, according to the terms of this 4749 Lease, or the violation by the party of the second part of any other of the above covenants, the said party of the first part, by its Agent or Attorney, shall possess the right to de- clare this Lease void, to enter and distrain any property be- longing to the said party of the second part, whether the same be exempt from execution and distress by law or not, for such rent, and the party of the second part shall surrender said premises to said party of the first part. It is also further agreed and understood. That the party of the second part agrees during the continuance of this lease to keep open and free from obstruction, the ditch running through the ^^90 foot strip’’ hereby leased, and parallel with the canal. For the full and faithful performance of the covenants and stipulations herein contained, to be performed on its part, the said party of the second part binds itself, its assigns and legal representatives firmly by these presents. 1390 Snyder Ex. 20 ^ — Lease to 111. Steel Co.— Continued. In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first above written. (Signed in duplicate.) J. C. Ames, (seal) PresH. C. E. Snively, Sec’y. Canal Office Lockport, 111., June 25th, 1892. Illinois Steel Company (seal) By Jay C. Moore, (seal) (seal) President. Attest : H. H. Gray, Sec’y. 4750 (Endorsements on back as follows:) Illinois Steel Company Lease of portion of ‘‘90 ft. strip” in Sec. 3, T. 35, K. 10 E. June 25, 1892. 20 years from July 1, 1892. Rental $500.00 per year payable annually in advance. $500.00 July 16, 1892. Five Hundred Dollars, rent on within lease to July 1, 1893. $500.00 Rec’d July 20, 1893. Five Hundred Dollars, rent on within lease to July 1st, 1894. $500.00 Rec’d July 18, 1894. Five Hundred Dollars, rent on within lease to July 1, 1895. $500.00 Rec’d July 3, 1895. Five Hundred Dollars rent on within lease to July 1, 1896. $500.00 Rec’d July 2, 1896. Five Hundred Dollars, rent on within lease to July 1, 1897. $500.00 Received July 2, 1897. Five Hundred Dollars, rent on within lease to July 1, 1898. $500.00 Received July 22, 1898, rent on within lease to Julv 1, 1899. 4751 $500.00 Received Julv 4/99 — rent on within lease to Julv 1st, 1900. $500.00 Rec’d eluly 16, 1900, rent on within lease to Julv 1, 1901. 1391 July 26, 1901. Kec’d $500.0 on within lease to July 1, 1902. July 19, 1902 Eec’d $500.00 on within lease to July 1, 1903. June 29, 1903 Rec’d $500.00 on within lease from July 1, 1903 to July 1, 1904. June 23, 1904. Received $500.00 on within lease from July 1, 1904, to July 1, 1905. June 22, 1905. Received $500.00 on within lease from July 1, 1905, to July 1, 1906. July 3, 1906. Received $500.00 on within lease from July 1, 1906, to July 1, 1907. July 6, 1907. Received $500.00 on within lease from July 1, 1907, to July 1, 1908. (Attached to this exhibit is a blue printing showing detail of Illinois and Michigan Canal.) 1752 ‘^Snyder Ex. 21.” This indenture, Made and entered into this 14th day of April in the year of our Lord one thousand eiclit hundred and ninety four, between The Board of Canal Commissioners OF THE State of Illinois of the first part, and Herbert S. Norton, of Lemont, Cook County, Illinois, of the second part, WiTNEssETH, That the said party of the first part, for the consideration hereinafter mentioned, agrees to lease unto the said party of the second part, for the term of Ten (10) years, that is from the 7th day of April in the year of our Lord one thousand eight hundred and ninety four until the 7th day of April (1904) Nineteen hundred and four, all the right the State of Illinois possesses to that portion of the reserved ninety feet strip lying on the berm or south side of the Canal, in Section 20, in Township 37, North of Range 11 East, described as follows, viz : — Commencing at the East side of what is known as Stevens street, in the Village of Lemont, Cook County, Illinois, and extending North Easterly up the Canal for a distance of about Four Hundred and Forty two (442) feet to the west line of S. L. Derby’s Lumber shed. (See diagram attached hereto) And the said -party of the second part, for the use and oc- cupation of the said Tract of Land, does hereby cove- 4753 nant and agree to and with the said party of the first part, that he will pay to the said partv of the first part, as rent, the sum of One Hundred and Fifty ($150) Dollars, per an- num, payable annually in advance. It is further Covenanted and Agreed, on the part of the 1392 Snyder Ex. 21, — Lease to Norton. — Continued. said party of the second part, that he will not re-let said Tract of Land, or any part- thereof, without the consent, in writing, of the said party of the first part. It is Further Agreed, That the party of the second part shall erect no buildings, wharves, or other structures, that will in any manner obstruct the free navigation of the Canal. And it is Further Expressly Agreed by and Between the said parties. That the party of the first part shall have the right at any and all times to enter upon the premises hereby leased, and use the whole or any part thereof, for the pur- pose of enlarging the Canal or repairing or changing the banks of the same, upon the condition that the rent shall be proportionately abated for the time and part of the premises so re-taken and used. It is Further Covenanted and Agreed between the said Parties, That in case of non-payment of rent, or any part thereof, as the same falls due, according to the terms of this lease, or the violation by the party of the second part of any other of the above covenants, the said party of the first part, 4754 by its Agent or Attorney, shall possess the right to declare this lease void, to enter and distrain any property belonging to the said party of the second part, whether the same be ex- empt from execution and distress by law or not, for such rent, and a lien on said property is hereby created in favor of said party of the first part, for said rent, and the party of the second part shall surrender said premises to said party of the first part. It is Further Agreed and Understood, That if at any time within Five (5) years from date hereof it should be deter- mined by the Courts of last resort that the 90-feet strip herein described is not under the control of the Board of Canal Commissioners of the State of Illinois then and in that event the rentals that may have been paid by said second party herein shall be refunded to him or to his successor or assigns, by the State of Illinois, through its Board of Canal Com- missioners. For the full and faithful performance of the covenants and stipulations herein contained, to be performed on his part, the said party of the second part binds himself, his heirs, executors, and administrators firmly by these presents : Ix TESTIMONY WHEREOF, the Said Parties have hereunto set 4755 their hands and seals the day and year first above written. (Signed in Duplicate) William A. S. Graham, (seal) President Herbert S. Norton (seal) Secretary (On the back appears the following endorsements:) 1393 $150. Received of H. S. Norton, One Hundred and fifty dollars, being Amt. on within lease to April 7th, 1895. May 16th, 1895. Received of H. S. Norton One Hundred fifty dollars being rent on within lease to April 7, 1896. July 31st, 1896, Received of H. S. Norton, One Hundred fifty dollars being rent on within lease to April 7, 1897. Aug. 25, Received on within lease partial payment, of ensu- ing year-97-98- ($37.50) thirty-seven Hollars and 50 cents. Nov. 23, 1897, Received on within lease Thirty seven and 50/100 Dollars ($37.50). Ihmal Commissioners per Hred W. Walker, Atty. Jan. 3, 1898, Received on within $25.00 ‘ ‘ 29, 1898, Received on within $25.00 April 5, 1898, Received on within $25.00 rent in full to April I 7, 1898. ' Oct. 31, 1900, Received on within lease from H. S. Norton of Lemont by John L. Norton, Three Hundred Dollars, in payment of rental to April 7, 1900. 4756 Know all men by these presents, that I, J. L. Norton, of the Village of Lockport, County of Will and State of Illinois, for and in consideration of the o))eration of the Bridgeport Pumping Works in the City of Chicago by the Canal Com- missioners and maintaining the present level of the Illinois ' and Michigan Canal, for the term of ten (10) days, to wit: ; from November 15th to November 25th, for the purpose of furnishing water power to run the mills of Norton and Com- pany at Lockport, Illinois, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release and quit claim unto the Canal Commissioners of the State of Illinois, all the rights, title, interest, claim or demand I may have to certain moneys, to-wit: three hundred ($300.00) dollars, paid by me on or about October 31st, 1900, on a certain lease entered into by the Canal Commissioners, party of the First Part, and Herbert S. Norton of Lemont, Cook County, Illinois, party of the second part, bearing date of April 14th, 1894, for the following described premises: ‘‘That portion of the ninety-foot strip lying on the berm or south side of the canal, in Section Twenty (20) in Township Thirty-seven (37) North of Range Eleven (11) East, described as follows, viz.: — Com- mencing at the east side of what is known as Stevens street, in 4757 the Village of Lemont, Cook County, Illinois, and extend- ing northeasterly up the canal for a distance of about four hundred and forty-two (442) feet to the west line of S. L. Derby’s Lumber shed.” (Signed) J. L. Norton. “Snyder Ex. 22.” This indenture, Made and entered into this 27th day of November in the year of our Lord one thousand eight hun- 4758 1394 Snyder Ex. 22 , — Lease to Kavanaugli & Russel. — Con. dred and ninety four, between The Boaed of Canal Commis- sioners OF THE State of Illinois, of the first part, and Michael Kavanaugh and Samuel Russell of Utica, LaSalle County, Illinois, of the second part, WITNESSETH, That the said party of the first part, for the consideration hereinbefore mentioned, agrees to lease unto the said party of the second part, for the term of Ten (10) years, that is from the 24th day of Novembeii in the year of our Lord one thousand and eight hundred and ninety four until the 24th day of November in the year of our Lord one thousand nine hundred and four, all the right the State of Illinois possesses to that portion of the reserved ninety-feet strip lying on the berm side of the Canal, in Section Nine (9) in Township Thirty-three (33) North of Range Two (2) East, described as follows, viz. : — That part of the reserved ^‘90-feet strip” in the south-west quarter of Section Number Nine (9) Township Number Thirty-three (33) North, Range Number Two (2) East of Third Principal Meridian, lying North of the Canal. And the said parties of the second part, for the use and occupation of the said Tract of Land, do hereby covenant 4759 and agree to and with the said party of the first part, that they will pay to the said party of the first part, as rent, the sum of Seventy-five ($75.00) Dollars per annum payable an- nually in advance. It is further covenanted and agreed, on the part of the said parties of the second part, that they will not re-let said Tract of Land, or any part thereof, without the consent, in writing, of the said party of the first part. It is further agreed, that the parties of the second part shall erect no buildings, wharves, or other structures, that will in any manner obstruct the free navigation of the Canal, or a passage of Ten (10) feet in width along the margin of the same for a berm bank or other Canal purposes. And it is further expressly agreed by and between the said parties, that the party of the first part shall have the right at any and all times to enter upon the premises hereby leased and use the whole or any part thereof, for the purpose of enlarging the Canal or repairing or changing the banks of the same, upon the condition that the rent shall be propor- tionably abated for the time and part of the permises so re- taken and used. It is further covenanted and agreed between the said par- ties, that in case of non-payment of rent, or any part thereof, 4760 as the same falls due, according to the terms of this lease, or the violation by the parties of the second part of any other of the above covenants, the said party of the first part, by its Agent or Attorney, shall possess the right to declare this Lease void, to enter and distrain any property belonging to 1395 the said parties of the second part, whether the same be ex- empt from execution and distress by law or not, for such rent, and a lien on said party is hereby created, in favor of said party of the first part, for said rent, and the parties of the second part shall surrender said premises to said party of the first part. It is also further agreed, that the said parties of the sec- ond part are not to sell or in any way dispose of spirituous, vinous or malt liquors on the premises nor allow any of their agents so to do, and, that in the event said second par- ties herein or any of their agents, should violate this liquor clause, it shall be considered a forfeiture of this Lease, and that such moneys as they may have paid as a yearly rental of said land shall not be refunded. For the full and faithful performance of the covenants and stipulations herein contained, to be ^^erformed on their part, the said parties of the second part, bind themselves, their heirs, executors and administrators, firmly by these presents. 4761 In testimony whereof, the said parties have hereunto set their hands and seals the day and year first above written, (signed President, (seal) Secretary W. A. S. Gkaham, Michael Kavanaugh . (seal) (Signed in Duplicate) Samuel J. Eussell (seal) On the back, of said document appears the following: Nov. 27th, 1894. Eeceived on within lease Seventy five ($75.) Dollars, being payment to Nov. 24th, 1895. Dec. 18th, 1895. Eeceived on within lease Seventy-five ($75.) Dollars, being j)ayment to Nov. 24th, 1896. Nov. 30th, 1896. Eeceived on within lease Seventy-five ($75.) dollars being payment to Nov. 24th, 1887. Dec. 23, 1897. Eeceived on within lease Sixty Dollars part payment of year 97/98. Jany. 14, 1898. Eeceived on within lease, balance $15.00 due on lease to Nov. 24, 1898. . Jany. 21, 1898. Eeceived on within lease Seventy-five Dol- lars, rent to Nov. 24, 1899. April 10, 1900. Eeceived on within lease Seventy-five Dol- lars rent to Nov. 24, 1900. Jan. 7, 1901. Eeceived on this lease $75 rent to Nov. 24, 1901. Jan. 23, 1902. Eeceived $50.00 to apply on lease. Dec. 1, 1902. Eeceived $25.00 in full rent to Nov. 24, 1902. April 8, 1903. Eeceived $50.00 to aunly on lease. May 14, 1903, Eeceived $25.00 in full rent to Nov. 24, 1903. Dec. 10, 1903. Eeceived on within lease Seventy-five ($75.- 00) Dollars rent to November 24th, 1904. 1396 Snyder, — Direct Exam. — Continued. 4762 On being shown a document by the counsel for defendant, the witness further testified: This is the Opinion of Honorable Joseph McRoberts, Judge of the Circuit Court of Will County, in the case of William Adam V. — (Thereupon counsel for complainant objected on the ground that the document speaks for itself.) The Court. Yes, that document speaks for itself; if he can tell us independently of reading that what it is, he may do so. The Witness. It is the Opinion of Hon. Joseph McRoberts as to the water jDower at Dam No. 2 at Joliet. Counsel for Complainant. The reading having occurred in the presence of the court, the answer having been read in the presence of the court, I move it be excluded. The Court. I will let it stand. Counsel for Defendant. Suppose you look at it and state independently of the paper wliat' it is. 4763 Counsel for Complainant. Objected to. A. The Opinion of Judge McRoberts. The Court. I think the paper speaks for itself. Witness. That paper is in my custody as secretary of the Board of Canal Commissioners. It has been in my custody for over four years. My predecessor had charge of it before that time; I found it in the office when I came in. Thereupon counsel for defendant offered the same in evi- dence. 4764 (To which offer counsel for complainant having objected on the ground that it did not purport to be certified, — the court sustained the objection. 4765 Thomas T. Johnston resumed the stand for further direct examination by coun- sel for defendant, and testified as follows : In my opinion the combined influence of the causes heretofore referred to would not exceed — would be such that the presence 1397 or absence of those causes would not affect the duration of the low water flow more than ten per cent, at the time. Q. Now, Mr. Johnston, what if any effect did these works have upon the water in the Desplaines below the point of discharge of the Illinois & Michigan Canal, taking into account the water de- livered into the river by that canal as compared to the addition which the canal made to the water of the Desplaines below the point where it entered into that river? 4766 Counsel for Complainant. To that I object. Before he answers I would like to have that point located by some physical object if it can be done. Counsel for Defendant. All right, locate on the map where the canal discharged into the Desplaines. The Summit level of the Illinois and Michigan Canal extends from Bridgeport in Chicago to Lockport, Illinois, as indicated on Woermann’s Exhibit 4. The particular location of the first lock does not appear to be shown on this map, but in any event it is in the Village of Lock- port, as I understand the boundaries of the village. The effect, prior to the making of what is known as the 4767 deep cut in the canal, which was made in the latter sixties and early seventies, mostly the latter sixties, I believe was to augment the flow of the Desplaines Eiver below Lockport to the extent that water was fed into the Illinois and Michigan Canal from Lake Michigan, or from the Calumet Basin through the so- called Calumet feeder. Q._ How did that amount fed into the canal ,and thence into the Desplaines Elver compare with any loss that the Desplaines Elver may have suffered by reason of the works that we have recited in the previous examination ? (To which question counsel for complainant objected on the ground that the question assumes a state of facts to exist of which there is no evidence, and for which the evidence of this witness affords no foundation, and does not connect with what the witness has been saying at all; and that the ques- tion calls for a summary of events without giving the ele- ments that make it. In other words, it is a conclusion of the witness without giving the facts upon which it is based.) The Court. Overruled. 1398 John so n , — Di red E xan i. — Con tinue d . 4768 Thereupon follows colloquy of counsel as to the right to have the witness summarize all the various causes. Counsel for Complainant. My point if your Honor please, is a little hit different. The witness says that the canal feeds into the Desplaines River at Lockport. If I understand his answer, that is what he means. Is that what you mean? The Witness. I have seen it doing so, yes sir. 4769 Counsel for Complainant. I asked when the question was first put that the point of in-take from the canal into the river, and the point of outflow from the river to the canal, he fixed so that we could know what it was he was referring to. The Court. I must have been distracted when you asked — talking to the bailiff. I didnT hear it. Counsel for Defendant. Read Mr. Starr’s statement. (Statement of Mr. Starr read as follows: ^‘Before he an- swers I would like to have that point located by some physical object if it can be done.”) The Court. The witness may testify, may point out the point of in-take and outflow that he is referring to. Counsel for Complainant. You say the in-take from the canal into the river was within the limits of Lockport! Where is the point of outflow! 4770 The Witness. As I said, it is not indicated clearly on this chart. It is at — as I have seen it discharged, at the flour mills at Lockport, what is called the basin. Counsel for Complainant. That is, the canal into the river! A. From the canal into the river. The points of in-take of the water were at the south fork of the Chicago River, and also from the Calumet Feeder at the point known as Sag on the line of the canal. 4773 From the time, 1848 up to the time the deep cut was made, the canal was fed in greater or less degree at the Bridgeport end of the canal in Chicago. At certain times, it being fed for navigation purposes, and at other times at the instance of -the City of Chicago for purposes of drainage. And while the — I am unable now to lay my hands upon the records of the pump opera- 1399 tions there, but I have in the past read them, and in my opinion, in the light of those records, there were times when the effect of the addition of Lake Michigan water and the Calumet Elver water to the canal must have considerably exceeded any losses that were due to the causes to which I have already testified. As to the particular length of those times, I am unable to state now, 4774 but there were such times and I flunk of quite a little period. When the deep cut was made it had the effect of allow- ing water to flow back rapidly from the Chicago Eiver through the Illinois and Michigan Canal to and below Lockport. The quantity of water fed through the canal due to the deep cut was in excess of that which could have been due to the loss, as to which I have testified. The proportion was, I should say, may be eight or ten times as much excess, taking it through a period from the time of the deep cut down, say, until 1900. 4775 The data pertaining to the capacity of the canal at the time of the deep cut, Chicago Eiver datum, indicated a flow of about 12,000 cubic feet a minute by gravity. (Counsel for complainant objected on the ground that the witness was being asked for the bald statement of fact which, in the nature of things he knows only from having consulted records of some kind or other, without the disclosure of those records.) 4777 The Court. What are the records that you base this state- ment on I The Witness. I have read all of the reports of the city en- gineer of Chicago, from back in the ’50 ’s, I think, as early as 1855, down to the year 1900. I have looked up all the reports of the Illinois & Michigan Caanl in connection with my services with the Sanitary District, and I have calculated the flow of the water through the Illinois and Michigan Canal at different stages from its normal slope and depth, and at certain times I have conducted and directed measurements of the flow of water in the Illinois and Michigan Canal. Q. What are the records on which you base your statement of 12,000 cubic feetl A. The specific records on which I base that 12,000 cubic feet per minute I do not recall now, but I recall the amount from an examination that I have made in connection 1400 Johnson, — Direct Exam. — Continued. with my services with the Sanitary District to acquaint myself with the capacity of the Illinois & Michigan Canal. The Court. I will let it stand. 4778 The IVitxess. The pumps were not used after the mak- ing of the opening of the deep cut, until the pumps started in 1884 by the City of Chicago at Bridgeport. Q. And what, if yon know, did they do to the volume going down the canal? (To which question counsel for complainant objected on the same ground urged in the last objection, — which objec- tion was overruled.) A. The operation of the pumps subsequent to 1884 were not absolutely continuous, but through a large portion of that time a portion of the pumps came under my personal observation from the year 1887 along down to the year 1900, and judging by my per- sonal experience with the operations of those pumps and the ob- servation of them and such records as I had access to subsequent to 1884, I should say that the average flow, of all of that period pumped into the canal by the Bridgeport pump was not far from 30,000 cubic feet per minute, although at times the amount 4779 pumped has reached as high as 40,000, possibly 45,000 cubic feet per minute. I have conducted measurements of the flow at one time within my recollection now near Mallow Springs, and found a flow, as I remember it now, of 632 feet, which is like 40,000 cubic feet per minute. I know about what amount should have been taken out of the river by the canal at Jefferson street for the purposes of naviga- tion. 1 investigated that subject two years ago to some extent for the Illinois and Michigan Canal Commissioners. The pro- vision of feed water on that level so far as navigation was con- cerned, could not, in my opinion, be over 150 cubic feet per sec- ond, which would be 9,000 cubic feet a minute as a maximum. 4780 1 have observed the stage of water, the depth of water of the Desplaines Eiver in its various portions during the period exclusive of the spring freshets, and as it existed prior to the year 1900 when the Sanitary District turned in its water. The depth would vary from that which existed in its deepest pools, to at 1401 times nothing on the bars. I have seen the bars in the 12 mile level without any water on them for a considerable period. I have seen the same thing at about the same time in other parts of the stream from Riverside down to Lemont and Lock- port. The particular place that I have in mind now where I noted the pool of the river between the bars had evaporated so that the crest of the bar stood quite a distance above the level of the water, was opposite what was known as Section 2 on the Chi- cago Drainage Canal, a mile or so above the crest of Willow Springs. I have seen the river above Riverside, not at the time of 4781 the spring freshets, and have observed its condition as to the stage of the water. I do not remember ever having seen it dry. I have seen it along its course, along up to Libertyville, at times when the river was very low. It may or may not have been dry at the time I saw it. I did not charge my mind particu- larly to note. The flow of the Desplaines River prior to 1900 for an average of 7 or 8 months of the year, would be, as I would express it, as being not significant; that is, the quantity of flow would not be a determinative quantity by reading the gauge at Riverside. I have observed the depth of the river below" Lockport prior to 1900 outside of the period of spring freshets. I do not remem- ber now seeing the river at any time when the Illinois and Michi- gan Canal was not delivering a considerable quantity of water into it, but it was on account of the increment of flow out of the canal water, the flow there that was not flowing above. 4782 The condition of the water from Lockport down, exclud- ing any contributions from the Illinois & Michigan Canal of the Sanitary District channel, would be substantially the same as above Lockport; that is for 7 or 8 months of the year of no sig- nificance. I am familiar with the conditions that existed above Adams Dam prior to the destruction of that dam, and remember the em- bankment between the canal and the river above the dam. As I remember it that embankment was a made bank of earth, pre- sumably more or less gravel and stone mixed in with it. 1402 J olinson, — Direct Exam.—Continued. The level at the bottom of the canal was not far from the level of the crest of the dam. The crest of the dam was about 60 feet below Chicago datum and the level of the dam of the canal per- haps 58 feet below Chicago datum. The height of the bank on the river side, with the river at low water, or at the crest of the level — of the crest of Adams Dam, which is minus 60 — the level of the bank minus 50 would be ten feet. 4783 The height of the bank from the top of the towpath bank to the bed of the river would be 8 feet more. That was the rise of Adams Dam. The width of the bank on top was about 12 feet. The inside of the bank was walled, and on the outside was a slope of perhaps 2 to 1 or such a matter from there to the water, as I remember it now. The inside was quite upright, nearly ver- tical. One slope was built up in the nature of a dry wall, and the other was protected in the nature of rip-rap. I did not notice whether the waters had had any effect upon that bank. I do not remember now of any influence of the action of the waters of the Desplaines Eiver on that bank. That bank extended half a mile or more, something like that as between the immediate river and the canal. 4784 As to the portion of the river where the Economy Light & Power Company Dam was under construction involved in this suit, I am familiar with the location where that dam was under construction. I am familiar with the character of the tow- path bank there. Q. What is the character of that bank as compared with the bank above Adams Dam? (To which question counsel for complainant objected, as incompetent and immaterial.) A. It was similar, a made bank. The material appears to be a stitf clay. As to how the material compares with the material of the strip above Adams Dam, — I cannot state specifically for the character of the interior of the embankment at Adams Dam, as 1 can down near the mouth of the Desplaines Eiver, because I saw 1403 more or less of the material of which it was constructed at later places, that is, material on the interior of the bank. Concerning the quality of the material of the towpath hank at Dresden Heights as to its durability or resistance to the 4785 effect of water, — it was quite radically suitable for the pur- pose of building an embankment. I have seen prints showing the same thing that is on these two sheets marked Sheet 1 of plans of dams May 20, 1908; the first is a blue print and is marked Gr 1527, and G 1553 is the other. Whether they are exact copies or not I cannot state. Assuming the formation of a pool by the work contemplated in these blue prints, that pool, if resting upon the towpath bank at Dresden Heights, would not affect the durability of that bank any further than what might be occasioned by the wave action. The effect of wave action could be prevented by riprapping the surface of the bank exposed to the wave action. There would be no neces- sity of riprapping the top of the bank or paving it, so far as 4786 wave action was concerned. I noticed about two months ago some rip-rapping or filling of stone on the beach, on the inside of the canal. None of the navigable waters of the canal were encroached upon by that riprapping. Q. Assuming if the dam is built in accordance with the blue prints which you have examined, state whether or not the pool level — state whether or not provision has been made to control the pool level, and the pool to be created by that structure. (Counsel for the complainant objected on the ground that the question calls for information that lies outside of the blue prints the witness is looking at, — which objection was overruled by the court.) 4787 A. The plans show that such provision has been made. 4788 I should say that the provision as shown on these plans would have a level two feet below the top of the towpath, as proposed and shown on these plans — and that would be ample to take care of two or three times what the maximum flow of the stream might be at that point. I have examined and know the location of the Kankakee feeder. It would be entirely feasible in case that feeder was restored to 1404 Johnson, — Direct Exam. — Continued. kise, to convey the waters from the feeder to the canal without j’ebuilding the aqueduct. Assuming that the pool has been created, according to the best engineering practice, the method that would be used for so con- v^eying the water, would be by using what is termed sometimes a syphon or a pipe laid on the surface of the ground or imme- diately below it to and underneath the waters of the river. That pool would be a feasible and practicable thing. Assuming that it was desired to restore, or to have navigation upon the feeder, it would be possible, with the existence of 4789 this pool, to arrange so that boats could pass from the feeder to the canal into it, in this way. The boats might be locked in the canal on one side, locked in the pool on one side and locked out on the other and vice versa. I have examined the columns on which that aqueduct formerl}^ rested. It would be impossible to use those columns in their pres- ent condition, in case it was desired to restore the aqueduct, be- cause they are in an uncertain stage of stability, and one or two of them leaning more or less. They show the defects of age in a way that makes it quite conclusive that they should not be used at all. It is a rule in rivers that the depth varies from point to point, and that formations known as pools and shoals will be met as the length of the river is traversed from one end to the other, grow- ing out of the fact that its bed is not absolutely homogeneous in resisting the erosion of water, and where the softer spots are, the water gets deeper than where the hard spots are. That 4790 condition of shallows and pools will exist in all creeks having sharp declivities. Cross-Examination. I am not in the employ of the defendant company. I am em- ployed to make certain invesigations and to be a witness here. I was first in the employ of the defendant company in June of 1898. I was with them until about the first of August, in 1898, and then again from the first of December, 1898, to the first of January, 1901, and then from January to December, 1902. That is correct, I think, perhaps within the error of a month. 1405 I have Iiad no employment subsequent to that time that could be measured in terms of time. They have asked me at one time or another to make some investigations or to do some service in the nature of consulting work, perhaps taking two or three 4791 days at a time at one time or another. That has occurred perhaps once in six months, may be a little oftener. My last employment at their hands was in the last year. That character of employment has lasted up until the present time. 4792 Q. You have given us your experience as a civil engineer at considerable length. I want to ask you about some other phases of it. When was the last law suit in which you testified as an expert? (To which question defendant by its counsel objected on the ground that it was wholly immaterial, — which objection was overruled by the court.) A. In the present week. That was at Madison, Wisconsin. The last one prior to that in which I testified as an expert, was about a month ago, at the City of Chicago. The one last before that was in February of the present year, at the City of Chi- cago. 4793 Next prior to that I so testified as an expert, as near as T can remember now, in February a year ago at Joliet, Illinois. Next prior to that I testified as an expert, as I remember now, in January of 1907 in the City of Chicago. I don’t recall now any other suit in 1907 in which I testified as an expert. Oh, I beg par- don, in 1908 I testified before the Legislative Committee in the City of Chicago early in January. My recollection is that it was early in January that I was called. It was about the first of January of the present year. I did not go there and give testimony in that case at the instance of and on behalf of this defend- 4794 ant, I did not testify in their behalf in January, 1908, nor in December, 1907. I did not go before the Legislative Com- mittee, either in December, 1907, or January, 1908, and give testi- mony at the request of the Economy Light & Power Company or some one in its behalf. I was summoned there on a subpoena signed by Mr. Shurtletf, I understand at the instance of the Illi- nois and Michigan Canal Commissioners. I cannot state of my personal knowledge whether it was so or not. 1406 Johnson, — Cross-Exam. — Continued. I was not paid for my attendance and service there, and was not promised pay, and do not expect to get any pay. In the case in March, 1907, that I testified in, that was on behalf of the 4795 Economy Light & Power Company. In January, 1907, I testified as an expert on behalf of the City of Chicago. In the examination before the Legislative Committee the subject- matter of the inquiry there was about this same dam that is the subject of controversy here. I have given you all the occasions in which I have testified as an expert during the years 1907 and 1908, as near as I can recollect now. I do not recollect any other occasions now during those two years in which I have testi- fied as an expert witness. I testified in a case pending against the Sanitary District of Chi- cago during the year 1907, — which I believe I referred to — it was a case pending between the — as I remember it between the Econ- omy Light & Power Company and the Sanitary District of Chicago with reference to a water power proposition known as the Gaylord proposition at Joliet. It is not my recollection that within the last couple of 4796 years or thereabouts and within a few months of each other I testified in one case for the Sanitary District of Chicago and another against it. % I first entered the employment of the Sanitary District of Chi- cago the first day of April, 1890. I entered their employment at the request of Lyman E. Cooley. Mr. Cooley was the chief engineer of that district at that time. My employment under him was as an under officer or employe. I continued at that time in the em- ploy of the Sanitary District of Chicago until the 10th day of De- cember, 1890, — from the first of April until the 10th day of Decem- ber. After that time I quit the employment of the Sanitary District. I resumed it again on or about the 20th of January, 1892. I re- mained in the employ of the Sanitary District of Chicago at 4797 that time until the first day of July, 1900, or eight years and a half nearly. Then I left their employment, and did not re- sume it again. I have not been in the employ of the Sanitarj^ Dis- trict of Chicago since the year 1900. 1407 As hydraulic engineer, I am at the present time doing some work for the City of Chicago. I have pending water power matters at Eainy Kiver in Minnesota. 4798 Between 1892 and 1902, these two corporations did not have litigation in court, to my knowledge. It might have been between the State and the Sanitary District. I did not un- understand that Economy Light & Power Company was a party to the litigation at all. The central thought was with regard to alterations to be made in Dam No. 1 of the Economy Light & Power Company at Joliet. I did not understand that that was owned by the Economy Light & Power Company. I understand that the waters that would flow past that dam were leased to the Economy Light & Power Com- pany; that the Economy Light & Power Comi^any had anything to do with the dam either by lease or property right I never under- stood. I understand that the Economy Light & Power Company had the power created by the dam but did not have the dam it- self. 4799 I never understood that the matters in which I testified were matters involved between the leasehold interests of the power company on the one hand, and the Sanitary District of Chi- cago on the other. I understood that I testified in be- half of the Sanitary District in the litigation pending be- tween the Sanitary District and the State of Illinois, in which indirectly the Economy Light & Power Company was a party in interest, and at that same time I was not in the em- ploy of the Economy Light & Power Company, having with- drawn from their service. I had a vacation in their employment from the inception of that litigation until its termination, 4800 which was about four months. I did resume employment with the Economy Light & Power Company after the litiga- tion was over or after the consent decree of the court was given out. And during that interval of three or four months in my em- ployment by the Economy Light & Power Company I was in the employ of the Sanitary District of Chicago. I have appeared upon the witness stand, as an expert witness in various cases in the last five or six years, approximately three or 1408 Johnson, — Cross-Exam. — Continued. four times a year. Five times, that is all. This is the fifth time during the present year, including the appearance before the Legis- lative Committee. I do not know of a company known as the Brushingham Syndi- cate or Company, or the name of anything which is pretty close to that, nor does that suggest any company that had me in their em- ploy at any time. 4801 I think I have a suggestion now dating hack as far as 1894, when after having asked the Chief Engineer of the Sanitary District for permission to do so, and it being granted, I was em- ployed by Clarence Buckingham. That occurred about 1894, as I remember. It wasn’t 1898. I prepared plans for a water power scheme for them between Lockport and Joliet, which, if they had constructed would have used the waters of the Sanitary District of Chicago. While I was doing that I was also in the employ of the Sanitary District of Chicago. On two occasions I have been employed by contractors, who brought suit against the Sanitary District of Chicago, and ap- peared as a witness in their behalf in court. One 4802 was a suit brought by Alfred Hartlive for damages on ac- count of the forfeiture of a contract. Another was a suit brought by a Mr. Sexton being of the same nature. In June, 1886, I was first employed in the City of Chicago. Not to live here; my business prior to that time was not here. All the information that I have concerning any of the matters about which I have testified, my personal knowledge of them only extended back to 1886, and such matters as I have testified to prior to that time was information gathered from such sources from which an engineer usually gets his information. I surveyed the bar that is in the Desplaines River a short 4803 distance below the Riverside gauge, in 1893. I have been at the site of those bars numerous times at various seasons of the year. In fact I have been in that vicinity quite frequently. I have made it a point to examine the bars. I examined them in the sense of a survey, that is with an engineering object in view. I did that in 1893 and again in the summer of 1894, and at odd times since then. I remember it distinctly, but not always as to 1409 the i)oint of time, because I have been there so many times tliat T naturally would not charge my mind with any particular time. One of the sources of losses to the river that I have 4804 already mentioned is the cutting of the divide at Kedzie ave- nue in 1852. I know of that by such information as engineers usually use in such connection. I have seen it in literature 4805 generally, and engineering literature pertaining to the time. Mr. Cooley prepared some of it. I don’t know who prepared the greater part of it. I cannot tell specifically without calculation how much water the Desplaines River lost by this cut I have mentioned. I won’t say that I do not know, but I will say that I have not made calculations and cannot state at this time what the loss would be. In a 4806 certain sense, it is true that at this time I don’t know. In this sense it is not true, namely, in that I have knowledge that there were losses. How much the loss is I am unable to state now, as I do not know. By virtue of the elimination of what is known as the 12 mile level, the Desplaines River lost some water naturally. I might add that I mean the elimination in regard to its width. Elimination means to rub out or take out. I mean by the elimina- tion of what is known as the 12 mile level the restriction of its confines to a very narrow region. I cannot state how much water the river lost because of that. 4807 The segregation of the drainage basin southward from the Illinois and Michigan Canal by the construction of that canal also caused the Desplaines River to lose some of its natural waters. I mean that the building of the Illinois and Michigan Canal on one side of the river cut out the flowage into the river from that side. I cannot state at this time how much water the Desplaines River lost by that. To the extent that the Illinois and Michigan Canal was fed from the Desplaines River in early times there would be some loss to the Desplaines River. 4808 I cannot state how much water was lost to the river by that process; I do not know that. As to what other thing existed or came into being that caused a loss of water to the Des- plaines River, — the Illinois and Michigan Canal at Joliet, that is the feeding of the canal in Joliet, we will call that. I cannot state 1410 Johnson, — Cross-Exam. — Continued. at this time how much water the river lost on that account. At this time I can think of no other thing or factor which existed whereby the river lost water that naturally flowed into it. I have mentioned the drainage of Mud Lake into the Chicago Eiver in- stead of permitting it to flow into the Desplaines Eiver. The cut made in 1852 at Kedzie avenue includes that. I recall right now another construction that would 4809 have the same effect, and that was the same construction of the Ogden and Nickerson Ditches. There were two of them. 1 don’t know the amount of water lost by any of them, — not to my personal knowledge. I believe I have examined, for this dam that the defendant is proposing to put in the Desplaines Eiver, as far as drawings are concerned, on two occasions only. I examined them on the ground once. I have not examined the specifications. There was handed to me here a few minutes ago two sheets of the plans of this dam, and I looked at them for perhaps a minute, each of them, or half a minute, each of them. I did make calculations to enable me to make the answers that were put to me from that examina- tion. 4810 I was asked, as I remember it in that connection, whether this dam that was there being constructed as shown by these plans was capable of taking care of the flood waters that might come upon it; and I looked at the plan and within 30 seconds of the time I was asked the question I answered it. I arrived at my con- clusion in this way, — I constructed a dam across Snake Eiver 4811 in Idaho, having a spillway substantially the same as this crest of this dam. I had made calculations of that dam in Idaho and was familiar with it and was able to calculate at once what would be the spillway of the work at Dresden Heights. The amount of water I took as entering into that calculation that might come down this Desplaines Eiver was about 25,000 cubic feet a sec- ond. There is the spillway and the tainter gates and water wheels, and some sluice gates, I believe. I don’t remember without look- ing how many tainter gates there were; I think there were some sluice gates, — I am not sure without looking at the map. I remem- ber there was a spillway about 400 feet long. 1411 4812 Its length is as essential an element as any other element in the quantity etf water that it will carry. Another element is the head in which the water will discharge over the dam. An opening of a certain width through which the water goes is what I described as being the length of the spillway. I do not recollect without looking at the plans how many wheels are provided for in this dam. Q. And you feel that you have sufficient data in your mind from the casual examination or short examination made to-day, to enable you to make these calculations, and you did make them? A. Yes, sir, to make such calculations as I have evolved in 4813 my answer. I have examined them at one time before. In making my calculations to-day I remembered and took into account the examination made before, to some extent; together with what I have seen in connection with works which I have con- structed, on the Snake Eiver, and what I have seen on these draw- ings. 4814 I won’t say I saw numerous other plans, perhaps two or three sheets of drawings as I remember it now. That was two years ago possibly. I am not the consulting engineer for the Economy Light & Power Company. H!ad no connection with this dam down here; I did not state that I had been consult- ing engineer in that capacity, in connection with this work. It was in connection with the work at Jackson street in Joliet. 25,000 cubic feet of water per second is the largest amount of water that may be expected down that Desplaines Eiver at the site of this dam. I have taken in the ultimate capacity of the Sanitary District Canal at 10,000 cubic feet per second. The Sanitary District Canal has not a capacity for a good deal more than that, through- 4815 out its whole length and the low level of Lake Michigan. There is a little portion of the canal that has not yet been built, as originally contemplated, as I understand it. The canal as contemplated at any time during my connection with the work, is completed now excepting the portion eastward from Summit. The plan did not contemplate when completed a capacity of 14,000 cubic feet instead of ten throughout its entire length. I did not under- stand it so. 1412 Johnson , — C ross-Exa m . — C o n tin ued. It was given originally and during the time I was connected with the service of the Sanitary District a capacity of 10,000 cubic feet per second throughout its entire length. Lately a project of tap- ' ping a canal through the Calumet or Sag from Lake Calumet 4816 to the Drainage Canal has been spoken of, which under cer- tain circumstances might result in 14,000 cubic feet per sec- ond being carried to Lockport and less than 10,000 feet from Chi- cago. I have been at the site of this dam that is being built by defend- ant, in recent years once. I was in the employ of the Sanitary Dis- trict of Chicago and^ in the first instance Mr. Cooley was my su- perior officer. I left the service at the same time that Mr. Cooley did. T went back again, after Mr. Cooley did and became a subor- dinate with Benezette Williams as chief engineer. I acted as 4817 chief engineer on several occasions. I was never known on the record as chief engineer. Besides Mr. Cooley and Bene- zette "Williams, Isham Eandolph was my chief officer. I acted as chief engineer in the month of December, 1893, and in the month of April, 1900, that I recall now. On other occasions for perhaps a period of two or three days or a week in the absence of the chief engineer. It was on occasions when he was called away. My work in most all the work I have done has not been office work in contravention of field work; in fact rather 4818 the reverse. Q. While yon were in the office with Mr. Cooiey yon did not do anything outside except when he divided his force on one occasion to make surveys in three different places, you were as- signed to one of them and had one of them I A. No, sir, that is not the truth. Q. That is not true? A. -No, sir, it is not. Q. That is all. Re-direct Examination. I was engineer for the Economy Light & Power Company except- ing for a period of two or three weeks I was employed by the Sanitary District as consulting engineer. I had a general practice aside from that. When I testified in the case of the Sanitary Dis- 1413 trict against the State, in 1898 I testified for the Sanitary Dis- trict. 4819 I stated I had testified possibly four or five or three or four times a year during the last five years. None of it was for the Sanitary District. The fact that I was preparing plans for Buckingham in 1894 was known to the officers of the Sanitary Dis- trict. It was known to the chief engineer, Isham Randolph. Mr. Buckingham consulted him before he spoke to me, and Mr. Ran- dolph called me in and told me the circumstances and left me at liberty to accept the employment. In February of this year I testified in behalf of the City of Lake Forest, Illinois, in a controversy relating to a fair, just and rea- sonable water rate. About a month ago I testified in Judge Mc- Ewen’s court, in this building, on behalf of the Crane Company in a suit for personal damages. That suit in which I testified last year for the Economy Light & Power Company was a condemnation proceeding, — that is my recollection. 4820 The last time that I can remember that I was consulted by the Economy Light & Power Company at all with reference to its affairs outside of my preparations for the trial of this case, — as I recollect it that was last August. Q. This Calumet proposition by which 14,000 cubic feet of water per second is contemplated, has not been adopted, has it! A. I do not understand that it is. Q. Do you know what the attitude of the War Department is as to that project. A. I think I do, yes, sir. Q. It has not been supported, has it, or it has not been ap- proved! Counsel foe Complainant. To that I object. Counsel for Defendant. That is a matter of common knowl- edge. The Court. Sustained. 4821 Counsel for defendant produced the printed report of the Canal Commissioners dated December 1st, 1873, making a report to Governor Beveredge and offered in evidence from that 1414 Johnson, — Be-direct Exam.— Continued. document the table appearing* on page 23 thereof, with the title ‘'Unsold Canal lands May 1st, 1873,” and asked that that table be copied into the record. 4822 Counsel for complainant conceded that the report would show such a list and that the bed of the stream does not ap- pear in such a list, and insisted that that fact was irrelevant, in- competent and immaterial. Counsel foe Defendant. I produce, the j)rinted documents showing the annual reports made by the Canal Commissioners to the Governor of Illinois for the consecutive years beginning with the year 1872 and ending with the year 1902, and call your atten- tion to the fact that each of these documents contains a list en- titled “Unsold Canal Lands,” with the date being the first day of Xovember, preceding the date of the report, which list does not contain any mention of the lands constituting the bed of the stream of the Desplaines Eiver in Section 25, Township 34, Xorth, Bange 8 East of the 3rd Principal Meridian, Grundy County, Illinois, and does not show any lands whatever in said Section 25. And I ask whether that statement as to what these tables contain is agreed to by counsel for the state in order to ob\fiate the necessity of copy- ing into the record these various tables. Counsel foe Complainant. Mithout examination I am unable finally to state, but that statement may stand unless contradicted upon further examination. 4823 Counsel foe Complainant. I think that is a fair way to put it. It does show some of these lists that bring forward new items which never have been mentioned before. The lists em- body the opinions of the board. For instance the one for 1902 brings forward a lot of land that never had been platted, places where they claim a little strip along the river bank. Up to that time they had never claimed, nobody had ever claimed it. It was .supposed to be part of the street. I may see fit to supplement it by offering some of the lists which mention it more in detail. I think my statement will not be con- tradicted. You will admit what I say Mr. Porter is a method of abbreviation. Counsel foe Defendant. I also call attention to the fact that 1415 in the report for the year 1901 and some of the other reports there appears in the list of unsold canal lots, the following item entitled ‘/Kankakee,” meaning Kankakee City, “Blocks 30, 31, 32, 34, 37, 38, 39, 40, and 42, being Section 31, Township 34, Eange 9 4824 East of the 3rd P. M., containing 16 and 32/100 acres at 25 per acre. Then opposite that under the heading “Valuation” the figures “$408.” I ask if counsel agrees that that statement and that item is in that last, in these reports in order to obviate the necessity of putting in the entire list. I also add that the word “Kankakee” appearing above this said descrip- tion refers to a subdivision called Kankakee, which was an addition to the Town of Kankakee, laid out. by Mr. John Beard, the plat of which addition has already been referred to or offered in evi- dence by complainant. And I will also state that these lands con- stitute what is called the 16 acre tract which was deeded by the Canal Commissioners to Griswold and by Griswold to the defend ant. Counsel for Complainant. That statement may be taken with the same force and effect as if the full list containing the items were offered in evidence. That is objected to as incompetent, irrelevant and immaterial. Counsel for defendant then offered in evidence a document which is the certificate of Governor Charles S. Deneen, executed on April 10, 1907, consenting to or approving the sale of a portion of the 90 foot strip at public auction, which document is duly certified by the acting secretary of the Canal Board under date of May 18, 1908. (Counsel for complainant objected to it on the ground that 4825 it referred to property in Will County many miles remote and away from the site of the property in controversy here, and as wholly irrelevant, incompetent and immaterial. Ob- jection overruled.) Which said document was received in evidence and marked ‘ ‘ Ex- hibit 1, June 11th,” and is as follows: 1416 Certificate of Governor Deneen. 4826 “Defendant's Ex. 1, 1/12/08 Office of the Canal Commissioneks Lockport, 111., Mar. 14th, 1907. To the Honorable Charles S. Deneen, Governor of Illinois. Dear Sir: — The undersigned, The Canal Commissioners, respectfully recommend that the interest of the State of Illinois in and to the parcels of land, hereinafter described, being part of the Canal Lands of the State of Illinois, other .than those connected with water power upon the said Canal to wit : All the right and title of the State of Illinois, in and to that part of what is known as the ninety (90) foot strip, on the west side of the Illinois and Michigan Canal, in Sections Three (3) and Four (4) in Township Thirty- five (35), North Eange ten (10) east of the Third Principal Meridian, in the County of AVill and State of Illinois, which lies west of the line drawn parallel with and fifteen (15) feet distanct wester- ly from the water line of the channel of said Canal, at ordi- nary navigation stage. Also all that part of the Canal lands in said Sections three (3) and four (4) which lies easterly of a line drawn parallel 4827 with and seventy (70) feet distant easterly from the westerly water line in the channel of said Canal at ordinary navigation stage, should be sold, as in our judgment the interests of the State will be promoted thereby; and The Canal Commission- ers request the approval of Your Excellency to the sale there- of, at public auction to the highest and best bidder, for cash, at the Canal Office, in Lockport, 111., on the 21st day of May, A. D. 1907, at ten o’clock in the forenoon; Thirty (30) days previous notice of said sale being first given in some news- paper published in the County of Will wherein said parcels of land are situated. I hereby approve of the sale of the parcels of land described in the foregoing report of The Canal Commissioners, at pub- lic auction to the highest and best bidder for cash, at the Canal Office, at Lockport, in said County of Will and State of Illinois on the 21st day of May, A. D. 1907, at ten o’clock in the forenoon; thirty (30) days previous notice of said sale 4828 first given by The Canal Commissioners in some newspaper of general circulation, published in said County of Will, wherein such parcels of land are situated. (Signed) (Signed) (Signed) C. E. Snively, President. AY. E. Newton, Secretary. AY. L. Sackett, Treasurer. 1417 Done at the State House at Springfield, Illinois, this 10th day of April, A. D. 1907. (Signed) Charles S. Deneen, Governor of the State of Illinois. State of Illinois, Will County. General Offices Board of Canal Commissioners, State of Illinois. I, John M. Snyder, Acting Secretary of the Board of Canal Commissioners of the State of Illinois, and Keeper of the Eecords and Files belonging to said Board, do hereby cer- tify that the above and foregoing is a true and correct copy of the request of The Canal Commissioners and approval of the Governor for the sale of the herein above described land. Witness my hand and official seal of the said Board of Canal Commissioners of the State of Illinois this 18 day of May, A. D. 1907. (Signed) John M. Snyder, (Seal) Acting Secretary as aforesaid.” 4829 "Counsel for defendant also offered in evidence a certified copy of deed executed by the Canal Commissioners to the Illinois Steel Company under date of May 21st, 1907, conveying a portion of the 90 foot strip by reason of the sale which was approved by the Governor as shown in the exhibit last introduced. (Objected to as irrelevant, incompetent and immaterial and as not the best evidence. Overruled.) Which said document was received in evidence and marked Exhibit 2 of June 11th, and is as follows : 4830 ‘‘Defendant's Ex. 2, of 6/12/08. Copy. This indenture made this 21st day of May, A. D. 1907, between the Canal Commissioners, of the State of Illinois, party of the first part, and Illinois Steel Company, a corpora- tion, organized and existing under and by virtue of the laws of the State of Illinois and having its principal office in Chi- cago in the State of Illinois, party of the second part. WiTNESSETH, that Wlicrcas, the said The Canal Commis- sioners on the 10th day of April, 1907, obtained the approval of the Honorable Charles S. Deneen, Governor of the State of Illinois, in the premises hereinafter described to sell at pub- lic auction on the 21st day of May, A. D. 1907, at the hour of 1418 Deed to Illinois Steel Co. — Continued. ten o’clock in the forenoon at the canal office at Lockport in the County of Will and State of Illinois, to the highest and best bidder for cash; all of which appears in the records of said Canal office, and Whereas, afterwards, the said party of the first part caused thirty (30) days. previous public notice of such proposed sale to be given by advertisement of the time and place aforesaid by publication in the Phoenix Advertiser, a public newspaper published in the City of Lockport, in the County of Will and 4831 State of Illinois, for five successive weeks one time for five successive issues of said paper, the date of the first paper con- taining such notice being the I8th day of April, 1907, and the date of the last paper containing such notice being the 16th • day of May, 1907, and pursuant to said notice, on the 21st day of May, 1907, at the hour of ten o’clock in the forenoon at the Canal Office at Lockport in said County of AVill and State of Illinois, said party of the first part exposed and otfered for sale at public auction to the highest and best bidder for cash all the interest of the State of Illinois in and to the said prem- ises hereinafter described, and thereupon the said party of the second part offered and bid therefor the sum of Forty- two Thousand ($42,000.00) Dollars, and it being the highest and best bidder and that the highest and best bid therefor, the said party of the first part thereupon struck off and sold said interest of said State of Illinois in said premises for the sum aforesaid; to said party of the first part, and IVhekeas, the said party of the second part has paid to the said party of the first part the said sum of Forty-two Thousand ($42,0d0.00) Dollars in cash and has in all things complied with the terms of said sale on its part to be per- formed ; Xow, THEREFORE, Tlfis indenture, witxesseth, that the said party of the first part, in consideration of the premises and the 4832 said sum of Forty-two Thousand ($42,000.00) Dollars in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, do hereby convey all the in- terest of said State of Illinois, in and to the said lots, pieces or parcels of land, situated in the said County of Mull in the State of Illinois anM known and described as follows, to-wit: That part of what is known as the Xinety (90) foot strip, on the west side of the Illinois and Michigan Canal, in Sec- tions Three (3) and Four (4)’ in Township Thirty-five (35) Xorth Range Ten (10) East of the Third Principal Meridian, in the County of Will and State of Illinois which lies west of a line drawn parallel with and fifteen (15) feet distant westerly from the water line of the channel of said canal, at ordinary navigation stage. Also all that part of the Canal lands in said Section Three (3) and Four (4) which lies easterly of a line drawn parallel 1419 with and seventy (70) feet distant easterly from the westerly water line in the channel of said canal at ordinary navigation stage. To have and to hold the same unto said party of the sec- ond part its successors and assigns, forever, as fully and ef- fectually as the law authorizes, and the said party of the first part might, could or ought to sell and convey the same l)y virtue of the statutes of said State .of Illinois. 4833 In witness whereof the said party of tlie first part has caused this instrument to he executed by Clarence E. Snively, its President, and William P. Newton, its Secretarj", and the seal of said party of the first part to he hereto attached, the day and year first above written, pursuant to the direction of said party of the first part, and entered of record in said Canal Office. The Canal Commissioners. (Signed) By C. E. Snively, President. Attest : W. K. Newton, (Signed) Secretary.'’ Here follows certificate of acknowledgment by Francis P. Stowe, Notary Public. 4834 Here follows certificate by John M. Snyder, Acting Sec- retary of the Board of Canal Commissioners, that the fore- going is a true copy. 4836 Counsel for Defendant. AVe have here the briefs filed in the Appellate and Supreme Courts in the case of Druley against Adams, and we have also the abstract of the records in that case which was signed by the counsel for both parties, and signed by the judge. AVe haven’t here any person who can prove that those are identical with the abstract and the briefs filed in that case. We can produce such proof. We will produce Mr. Knox to testify that they are duplicates. We can produce him and he will so testify. His home is in Joliet. Counsel for Complainant. In order to avoid a continuance for that purpose, counsel for defendant states that the witness named when produced will testify as counsel states, but we insist that the evidence to which the witness would so testify is irrele- vant, incompetent and immaterial. Counsel for Defendant. The doctrine under which we claim the right to introduce him is that as to matters in controversy 1420 in a law suit statements or admissions made by a party at any time at any place are competent, and that is especially so of state- ments made in proceedings of record to which such party was a party or where he was the real party in interest. The in- 4837 troduction of briefs — in my experience — I have known it a number of times as being of the same nature as pleadings. Pleadings are always taken up as admissible against a party. We have established in this case that while the nominal party was Mr. Druley, the actual party was the State. The Canal Commis- sioners, by their resolution said it was their duty to assume, the State’s duty to assume, and the state retained and paid the attor- ney who appeared in the case for Druley and Slater and paid the fees in that case. The record shows clearly that it was really a suit by the State. The rights of the State or what was contended for throughout were in the briefs of both parties. It is upon that theory that we claim they are admissible. 4838 Thereupon the court overruled the objection of complain- ant and admitted said book App. II, p. 3905; Trans., pp. 6059- 6256; Abst., pp. 1733-1827, and counsel for defendant read from the abstract of record. Circuit Court of Will County, tiled in the Supreme Court, September Term, A. D. 1881, William M. Druley, Appellant, vs. William Allen, Appellee. Appealed from Appellate Court, Second District, a portion on page 2 : it eemembeeed, that evidence was introduced which, for the purposes of this appeal, it is stipulated by and between the parties established the following facts. And then sets out the ownership on the part of the plaintiff of the prop- erty in question, his having succeeded to Philo A. and Orlando H. Haven, having had mills propelled by water power upon the river, the water being derived from the river. That the canal was open for navigation in the spring of 1848 ; that the Summit division of said canal terminates at Lockport, Illi- nois, on Section 23, Town 36, Eange 10, and was improved by the City of Chicago so as to make a continuous level draw- ing water from Lake Michigan from the terminus of the South Branch of the Chicago Eiver to Lock No. 1, aforesaid under the Act of the General Assembly of date February 16, 1865; 4839 that said improvement was completed about May 1, 1871 ; that the State of Illinois, by Act of the General Assembly, as- sumed charge of said improved level in the year 1871, by Act of date October 20, 1871, and has since controlled the same. That from Dam No. 2 in Joliet, south the caual level is known as the Channahon level; that all the water which is 1421 put into said level for any purposes is drawn from the pool formed by Dam No. 2 at JoHet, above plaintiff’s dam, and since the building of said canal and its opening in 1848, until the completion of the structures of defendants no water bad ever been drawn from said level, or bad been put into the same ex- cept as required for navigation purposes, nor bad any water power been used or leased on said level. That there is more water introduced into the Summit level of said canal by reason of the improvement known as the deep cut, above referred to, than is required for navigation purposes, and more than is required for the purposes of the canal between Locks 1 and 2, 2 and 3, and 3 and 4, on said canal between Lockport and Joliet; that the use of such sur- plus water is leased to Norton & Co., at Lockport, so far as they may require, and the balance is discharged by a spillway, — both the water used by Norton & Co. and that discharged by said spillway being conducted by a. race shown in map 1 4840 from the hydraulic basin, connected with the canal, also shown on said map, to the Desplaines Eiver, as shown on said map, at a point in Section 23, in said Town, and from thence mingled with the other water of said river, follows the bed of said stream through Section 22, 23, 27 and 34 in the Town of Lock- port, anfl partially through Section 3, in the Town of Joliet, as shown by said map, to a point where said canal affects a junction with said river.” 4841 Thereupon counsel for complainant asked that his objec- tion might stand as to the whole document without it being necessary for him to make specific objections from time to time, and the court held it would not be necessary. ^‘That from said point in Section 3 aforesaid where said junction is made to Dam No. 2 in Joliet, said canal is con- 4842 tained within artificial banks or walls of stone, but comprises the original bed of said river, and leaving said river as shown on said map at Dam No. 2. That there is a mill site and mill on said river. Sec. 23 in Lockport, and has been for many years; and that from the points on Sec. 23 where said surplus water is discharged to the point on Sec. 3 in Joliet, where the canal enters into the bed of said river there is no connection between said canal and said river, and no structures, works or improvements of any kind were ever placed on said river, or any control exercised over the same by any canal authorities or the state, for any purpose; that said waste-weir is never used except in case of high water and floods, or when it is necessary to draw off the water from the level for the purpose of repairs, there usually being no more water than is utilized at Norton’s mills. That the amount of water which is discharged into the Des- 1422 Extract, — Dniley vs. Allen. — Continued. jolaines Eiver at Lockport from the Summit division of said canal through said spillway and Norton & Company’s race is about 25,000 cubic feet per minute; that the amount of water required for navigation purposes on the canal from Lock No. 1 to Dam No. 1 is about 1,220 cubic feet per minute. That the amount of water required for navigation purposes of said canal from Dam No. 1 to the end of the Channahon level is about 3,300 feet per minute, and the amount required 4843 for navigation purposes on the Channahon level alone is about 2,800 cubic feet per munute.” Counsel for Defendant. Your Honor will note it discharged in 1881 — 25,000 cubic feet per minute, and the amount required to be taken out for navigation purposes was 2,800 cubic feet per minute. ^‘That since the completion of the deep cut and the turning of such surplus water into the river at Lockport the amount of water flowing over Adam’s dam at Joliet before the diver- sion of the water herein complained of was greater by two- thirds, as estimated, than the amount flowing over said dam prior to said deep cut improvement, and that the amount of water passing over Adain’sdam since the diversion complained of is double the amount which passed over said dam before the completion of the deep cut. That the season during which said canal is open for nav- igation on said Channahon level is generally from March 25th to November 25th in each year.” And also from the brief of Mr. G. D. A. Parks, attorney for the appellees in the Appellate Court, Second District, December Term 1880, being in the same case, page 3 — it isjDage 1 of the brief for appellees: ‘^The record presents the following as the principal points for consideration : First : Viewing the state and Adam, in the relation of upper and lower riparian proprietors on the Desplaines Eiver, is 4844 the state guilty of a diversion, if it takes out above Adam’s dam no more water than it brings in from Lake Michigan through its own canal ? Second: Even if the state itself be supposed guilty of a diversion by the act of passing the water from the pool above Dam No. 2 down to the Channahon level on which the oat mill of the appellees is situated, and where it can by no possibility again become available to the appellant, whatever use is made of it, can the appellees. Slater & Druly, be sued as the responsible agents in the act of diversion, which is thus already irrevocably consummated by operations at the lock and dam above. Third: Adam having purchased subject to the release exe- 1428 ciited by his grantors in 1853, does that relief operate to bar the action r’ ‘‘Now, how have the legal attributes, of this water, with ref- erence to the rights of the appellant, been essentially chang- ed? The plan of the canal as to the disposition of the sur- plus water, obviously contemplated this very mode of trans- mission from one level to another. The total fall between Lockport and Joliet is about 60 feet, and in that X)art of the 4845 canal which concerns this case, it will be seen, there are seven successive levels; 1st, the Summit level; second, that between Locks 1 and 2; 3rd, between Locks 2 and 3; 4th, between Locks 3 and 4; 5th, between Lock 4 and Dam No. 1; 6th, between Dams 1 and 2; 7th, the Channahon level. Into the Summit level Lake Michigan, by the recent inp^rove- ment, supplies, as was contemplated in 1836, a large quantity of surplus water, estimated at about 25,000 cubic feet per min- ute, not needed for navigation, but very valuable to the State of Illinois and the manufacturing interests of Lockport and Joliet, for hydraulic juirposes. The plan of the canal within this distance affords four falls available to the state for water power — one at Lock}oort, leased to Norton & Co.; one at Dam No. 1, one at Dam No. 2, and one on the Channahon level, a portion of which is leased to the defendants. Thus the same volume of water is repeatedly used on successive levels within a space of about four miles. Decently the Canal Commissioners found that the surplus water at their disposal from the level above Dam No. 2. was such that after leasing all that could be leased to advantage at the dam, and after transmitting to the appellant more than double the amount he was accustomed to receive through his own x)itiful stream before the deepening of the cut” (the reference being to the Desplaines River) “there was still a 4846 large surplus that could be utilized most x^rofitably by the state, in the method exemplified in the case at bar, viz: by drawing it directly through openings from the canal itself, and then discharging it into the river, but necessarily and unavoid- ably below the plaintiff's dam.” 4847 On page 25 : “The fact then, that this link of communication between the hydraulic basin at Lockport, and the upper basin in Joliet,” (that being Section 22, 23,. 24, 27, the river in those sections) “in which the river discharges as a feeder, does not belong to the state, is, I submit, quite immaterial to the argument. It is a circumstance affecting only and exclusively the rela- tions between those particular intermediate owners and the state. In fact, for fully two-thirds of the way, as will be seen, the river runs through canal lands, which must be supposed to have been sold subject to the right of the state to the use 1424 Extract, — Druley vs. Allen. — Continued. of tile channel. But those also who purchased from the gov- ernment of the U. S. must have clone so after the plan of the canal connecting with the Desplaines Elver as a feeder was adopted, and with full knowledge of and reference to it.” That language does not apply to the state, hut applies to odd sec- tions 22, 27, 23. ‘‘2. The action was brought in evasion of our express and 4848 established public policy, in respect to controversies with the state, arising from the management of the canal by her of- ficial agents. 8 St. cited supra.’ ^ That is they could not sue the state, and they tried to avoid that by suing its commissioners. ‘‘It is very distinctly a case coming within the reason and spirit of this wise policy of the goverment. Confessedly, it is a dispute between William Adam and the State of Illinois, in- volving the control, at Joliet, of the immense volume of sur- plus water which pours down from Lake Michigan through the deep cut. If Adam has been aggrieved, the state should pay the damage, and if constitutional and statutory provision, while thus taking the rights and liabilities of the state out of the jurisdiction of her judicial tribunals, contemplate that her legislature will do him ample justice. To that resort, how- ever inconvenient, he is confined.” On page 2, of the brief and argument for appellant in the 4849 Supreme Court of Illinois, at the September Term, 1891. On page 2, the last paragraph at the bottom of the page: “Mdien the canal leaves the river at Dam No. 2, it pursues a southwesterly direction, diverging gradually more and more from the river, this being known as the Channahon level. On this level, and about half a mile below Adam’s mill dam, the defendants in 1878 erected an oat mill on the berm or west- erly bank. The Canal Commissioners had discovered, that by simple and not very expensive structures, a valuable water power, promising to yield a considerable addition to the rev- enues of the canal, might be developed in this quarter of the Town of Joliet; and accordingly made to Slater and Druley a ten years’ lease of sufficient water to run their mill, under which lease the defendants proceeded to put their enter- prise into operation. Their estal3lishment is situated nea/ly a mile below Dam No. 2, where the river and the canal part company. It is for this water thus drawn from the canal, at si point far below the plaintiff’s mill, and far below Dam No. 2, that the action was brought against them as lessees of the state; Adam not choosing to make his contest directly with the state herself.” Your Honor notices that the mill which was using the diverted water was below tlie Adam’s mill, and they got the water of 4850 the river to it by carrying through the canal and around Adam’s mill more water than was necessary for purposes of navigation. The stipulation by which the Havens settled with the state, or the Canal Commissioners, being that the state should use only such water as was necessary for navigation. ‘‘It has never been, and of course cannot be pretended that the surplus water in question is to be described as any part of the natural and customary flow of the Desplaines River; if by that expression is meant the flow derived from its nat- ural sources and affluents in the water shed which it drains. The Desplaines is in truth a very insignificant stream, never of much use as a feeder in the season when its services are most needed, and, exce])t as reinforced by contributions from the canal, affording sites only, for what are sometimes de- nominated ‘thunder shower mills.’ In 1871, when the Summit level from Chicago to Lockport Avas finished on the original deep cut plan, wliich the pecuniary embarrassments of the state had for so many years suspended, drawing its supply directly from Lake Michigan, as the foun- tain head, the Canal Commissioners found themselves in pos- session on the Summit level of a vast surplus of water, ten 4851 fold beyond what was required for navigation. The question then met them, how they could best utilize it for the canal revenues, and the public good?” “First. Subject only to the reciprocal rights in the flow of the water existing between the dominant and servient estates, each riparian proprietor is the owner of the bed and banks forming the channel of a water course as absolutely to all in- tents and purposes, as he owns his farm upon its borders; and he may use it with precisely the same perfect and unqualified rights of dominion. No one can call him to account for such use, save only in respect to the water which flows upon, through and from his land. This doctrine is too familiar to need the support of authorities.” From page 4 of the same brief : “The compromise was assented to by the trustees, because on their part they did not choose to be harassed with per- petual suits for even nominal damages. The Appellate Court, however, if we rightly apprehend, its decision, adopted the conclusion, not only that the release was no bar to the action, but that it even had the effect of giving to the plaintiff as grantee of the Havens, a right to claim as 4852 riparian proprietor this A^ast additional volume of water, pro- duced eighteen years afterwards by an improvement which en- entirely revolutionized the former system of supply — an addi- 1426 Extract, — Druley vs. Allen. — Continued. tion exceeding, probably, twenty times the natural flow of the Desplaines in 1853. Holding that court, as we do, in the highest respect, we must, nevertheless, be permitted to insist here most strenuously and confidently that their position is unwarranted by any just con- struction of the release. The whole transaction between the Havens and the canal Trustees, had reference to the state of things then existing. The canal had been completed in 1848 upon the shallow cut or raised level plan, as the best the state in those hard times could do. Instead of a direct and never-failing supply from the lake, the level was to be supplied by the poor expedient of pumps at Bridgeport, re-inforced by the Calumet, and the feeble and uncertain tributes in spring and fall of the Little Desplaines. There are probably upon the bench of this court those who personally know how little anybody in Illinois at that early day expected the time would ever come when this channel wmuld be carved deep through miles of solid rock to the inexhaustible bosom of the lake.” On page 49, still continuing the argument on the release of the Havens upon contract to compromise, and why it was entered into : 4853 ^^The Desplaines was not much of a stream, but the trus- tees wanted to control it as a feeder for whatever it was worth, without the liability of incessant lawsuits.” On page 39 (additional brief for appellant) : ‘Hn the case at bar the state is directly interested, not as a party it is true, but in the result. If this judgment is collected, the state would be both legally and morally bound to refund the money to the appellants. And then again, if the judg- ment of the Appellate Court is affirmed, all revenue to the state from this source will be lost.” And from the petition for rehearing filed at the March Term of the Supreme Court of Illinois, March Term, 1882, petition signed by the same attorne}^, G. D. A. Parks, and also by E. F. Bull, as attorneys for the petitioner: ^‘May it please your Honors: So important are the public rights involved in this case, so novel some of the questions it presents, and from certain spe- cial circumstances happening to attend it so disastrous to the interests of the canal the final establishment in this court of the claim of the appellee, that we must earnestly entreat the court to reconsider its judgment.” 1427 On page 36 : ‘‘Is it not settled by an overwhelming weight of authority that an upper riparian proprietor on a natural water course 4854 is only bound to deliver to the one below the natural and ordinary flow which he has received from the one above ; and, as corollary to this, that if he adds to the stream from an independent source or reservoir of his own, he may again de- duct it or an equivalent quantity I omitted one paragraph on page 14, or rather the bottom para- graph on page 13: “What is there in this mode of passing the water from one point to another on the canal, which is supposed to sever the right of the state to it? Simply this, at Lockport the river is lower than the canal; at Joliet, at the point of intersection, the canal is lower than the river. At Lockport, the surplus, which we admit must be got rid of there in some way, is discharged into channels which lead down to the Desplaines, not far distant. But when discharged, the relative course and comparative levels of the two water courses are such, that it is destined to rejoin the canal on the fifth level below the summit level, that is, on the level between Lock No. 4 and Dam No. 1. It thus leaves the canal under the necessary concomit- ant condition of returning to the canal and of returning to it before the beneficial rights of the appellee, as a lower riparian proprietor, become involved. If abandonment, in the sense in which the term is here used, depends at all on intention, we absolutely know from the original plan of the canal itself, that 4855 there was not and could not be any intention on the part of the state to abandon the water at Lockport irreclaimably to public use, save for the distance between the two levels.^’ I may say parenthetically, there was the contention that the in- tention of the parties at the time, as one act, was to discharge the water, but to reclaim it again when it got down to the outlet of the canal. “If, then, by a physical necessity, the water was to return to the possession of the state, is it not impossible to success- fully maintain that it was intentionally abandoned? Thus the question narrows itself to a single point: ^ Suppos- ing that the state intended to assert whatever legal rights she had or might have in this water after it should have been re- stored to the canal, does the fact of its previous transmission from the one point to the other through the medium of the Desplaines Eiver, a channel not belonging to her, preclude her claim ? ” 4856 J. W. WOEKMANN, a witness for the defendant, testified as follows: Direct Examin ati o n . f My name is J. W. Woermann, age forty, occupation civil en- gineer; I reside in Chicago. I am in the employ of the Economy Light & Power Company, at present, in connection with this case. I was not directly in the em- ploy of it prior to that time in connection with the construction of the dam. I was in the employ of Mr. D. W. Mead, as resi- dent engineer in charge of construction of the power house and other works at the mouth of the Desplaines Biver. I entered Washington University at St. Louis and began the study of civil engineering in 1885. In 1888 I assisted in a 4857 class survey of the Missouri Biver at Washington, Missouri. In 1889 I completed the regular four year course and entered the service of the United States in connection with the survey for a deep waterway from Lake Michigan to the Illinois Biver at La Salle. In connection with that survey I made a trip down the Desplaines Biver from Joliet to the mouth in July of 3889, in a skiff. In October of that year I proceeded — well we did not stop at the mouth — I started to say that we did not stop at the mouth of the river, we proceeded on down to La Salle, Illinois. That was in connection with the survey of the river. Part of the time I was in the office working on maps and estimates, and part of the time in the field. In making this trip down the river in a skiff I was securing the high water marks, all that could be found from earlier stages. I was working at that time under 4858 Mr. L. L. Wheeler, directly. That survey was what was generally knowm as the Marshall survey. In October of that year I proceeded on down the Illinois Biver from La Salle to La Grange, Illinois, where the government was completing a dam at that time. I made that journey also in a skiff. I then returned to the Washington University to take a fifth year in civil engineering and secure the degree of civil engineer, which was conferred upon me in June of 1890. In June, 1890, I re-entered the service of the United States in 1429 connection with the survey of the Missouri Iviver, and for a short time was engaged upon triangulation work between Sioux City and Omaha, and during the remainder of the year upon the survey of the Upper Missouri Elver, above Fort Benton. On the Upper Eiver I had charge of a level party; from tlie head waters at Gal- latin, where the Madison and the Jefferson and the Gallatin unite to form the Missouri down to Fort Benton, a distance of about 250 miles. 4859 There was no navigation there except ferry boats at a few places, rope ferries. We built two barges at the head waters and covered them with canvas, and floated down. We proceeded as far as Great Falls, where we had to abandon the boats alto- gether and use wagons from that point down to Fort Benton. That was about 20 miles. We had to use a rope to let us down over most of the rapids. From January 1, 1891, to July, 1892, I was engaged upon sur- veys and estimates in connection with the location of a canal around the lower rapids at Eock Eiver, a portion of the Hennepin Canal ; from July, 1892, until November, 1895, I was in charge of the construction of one lock, the first concrete lock built in the United States, two dams, seven tainter gates, two swing bridges, one sub- merged culvert and four miles of earth work, forty-five hundred feet of which was in the bed of Eock Eiver, both embankments in the bed of Eock Eiver. 4860 That was opposite Milan. I heard Colonel Wheeler testify. That was the embankment concerning which he testified. It is shown on ^‘Wheeler Exhibit 1.” I had charge of it. The di- mensions of those embankments were 12 feet wide on top. (Objection on the ground that the details of specific works are irrelevant, incompetent and immaterial. They are res inter alios in the highest sense.) The CouKT. He may answer. Counsel, fok Complainant. That objection may stand to all sim- ilar inquiries to avoid repetition! The Court. Yes. 4861 Witness. To describe those embankments : they are located in the bed of the river in order to provide a channel for mill 1430 Woermann, — Direct Exam. — Continued. creek on the land side. It was not desirable to take the creek into the canal, because of its great volume at times of flood, and also because of the amount of sand and mud which it brought down, and the canal was built out in the river, leaving a channel for mill creek on one side, and the flow of Eock River on the opposite side. The embankment next to the river side was 14 feet in height, 12 feet wide on top, two to one slope on the river side, one and one-half to one on the canal side. The embankment on the land side towards the channel left for Mill Creek, was 12 feet wide on top, with slopes of one and one-half to one on each side. The height was four feet lower than the hank next to the river. The Hennepin Canal was between the two embankments, so that there was water on three sides. The material of which they were constructed was brought from an excavation just immediately 4862 above which consisted of two to three feet of black loam, um derlaid by yellow clay, and a small amount of gravel just im- mediately above the rock. I am familiar with the material of which the tow-path hank at Dresden Heights is constructed. The material in the embank- ment at Dresden Heights between the Economy Light & Power Company’s proposed dam and Channahon, is much superior, for the reason that it is heavier, has a great deal of gravel in it and very little black loam. Those banks at the Rock River were built in 1893 and 1894. I saw them three years ago. As near as I could determine, the condition they were in, the way they were left at the time they were finished, had not undergone any change whatever. 4863 From November, 1895, until July, 1896, I was in charge of the operating and care of that portion of the canal around the lower rapids of Rock River, it having been opened to naviga- tion in November, 1895, in connection with the operating and care of it and riprapping the banks and dredging out the entrances at each end of the canal; the Mississippi River being at the lower end and Rock River at the upper end. In July, 1896, until November of the same year I was engaged upon surveys in connection with the location of the dam at Sterling across Rock River, at the head of the feeder. From November, 1896, until May, 1897, I was in charge of the inspection of the 1431 dredging of the Chicago Eiver and South Branch under the United States, From May, 1897, until October of the same year I was engaged upon the surveys, maps and estimates in connection with the location of the Hennepin canal, from Feeder Junction westward to Eock Eiver, a distance of 34 miles. From October, 1897, until June, 1899, 1 was in charge of miles 24 to 28 inclusive — miles 20 to 24 inclusive, and for a short time of miles 25 to 28 inclu- sive in the eastern section of the canal. That is the Hennepin Canal, and also had charge of the 4864 erection of five highway bridges between Bureau and Wyanet. From June, 1899, until September, 1902, I was in charge of the construction of miles 24 to 29 inclusive of the feeder, and of miles 28 to 32 inclusive of the main line of the Hennepin Canal. This included the construction of more than 20 miles of embank- ments, and also one lock and aqueduct, a number of bridges, cul- verts and similar structures. ‘‘Embankments” means canal em- bankments. Those were earthen embankments. From September, 1902, until September, 1905, 1 was in charge of the surveys, maps, plans and estimates for the 14-foot water way from Lockport, Illinois, to the Mississippi Eiver, including sec- ondary triangulation, precise levels, topography, hydrography and so forth of some 866 square miles. I also prepared^ — in connection with the river work we took numerous discharge measurements, gauge readings, borings and so forth. I also prepared plans for the locks, dams, bridges and other necessary structures, including plans and estimates for a proposed canal around the rapids at Joliet and at Marseilles. That employment was by a Board of Engineers of which Cob 0. A. Ernst was chairman under the United States. That 4865 is embodied in the government I'eport of 1905, House Docu- ment No. 263. The part I made is that which is signed by me, covering some 100 pages or so. It is my report, that is, without the numerous appendices. From September, 1905, until the present time I have been en- gaged in private practice; made the surveys in connection with the location of the Illinois Traction Company’s bridge over the Illinois Eiver at Peoria, Illinois, and had charge of the construc- tion of the same; have also made numerous examination and sur- 1432 Woennann, — Direct Exam. — Continued. veys and reports on miscellaneous matters, including an estimate for an alternative location of a 14-foot waterway in the vicinity of the mouth of the Desplaines Eiver, substituting a lock and dam at that point in place of two locks and dams which form part of the government project. I made this last report for Mr. Mon- roe. From July, 1907, until the work was stopped by injunction I had charge of the construction of the proposed dam and power house at the mouth of the river, being employed by Mr. D. W. Mead as resident engineer. 4866 In connection with the survey of 1899 I saw the river at several places above Joliet, but was quite — was very familiar with it from Joliet to the mouth on account of going over that por- tion in a skiff, twice, once in connection with that survey, once in connection with my own survey in 1904. AVell, under my direction I had all of the gauge readings compiled which were ever taken along the Desplaines and Illinois Kivers; searched all of the government and state and private offices, city and bridge and railroad, and I have made some study particularly in connection with the Riverside gauge. The gauge readings are all published in that House Document No. 263. Those were pre- pared under my supervision. (Objection to the word ‘^prepared.”) 4867 The MTtness. Perhaps compiled would be a better word than ‘‘prepared.” Let me add, Mr. Scott, just this in con- nection with Mr. Starr’s remarks, that I did establish a great many new gauges in connection with my suiwey, and those readings were taken under my direction and also are compiled in that same report. I have examined the gauge readings that have been offered in evidence in this case. I have made a tabulation showing the num- ber of days in each year during the 19 years for which we have the records when there was no discharge at Riverside; also another table showing the number of additional days when there was 4868 six inches or less of water at Riverside. I have preparecf another table there, a table showing the number of days in each month of each yeai when there were 15 inches or more of water in the river at Riverside. 143:j Q. Now taking first in the 19 years tlie number of days when there was no discharge, what are the number of days as sliown by the gauge readings that have been offered in evidence here. A. I would have to refer to my notes for that. Q. You may do that if you cannot testify from your independent memory. A. Did you ask if for each month, or just the total for each year? For each month would make it quite lengthy. Q. We are interested in knowing as to each month because we may desire to make some argument as to whether it was within the period of navigation or not. The Court. The witness states that he has it all written down. If it is correct suppose you just put it in. Counsel for Defendant. We will give them a copy. The Court. And regard it as testified to orally. And thereupon the said compilation was read in evidence, as follows : 4870 Woermann’s Waterway Report Continued. Riverside Gauge Readings. 1886. No Discharge as follows: Less than 6" July Aug. Sept. Oct. Nov. Dec. 5 davs 19 14 26 29 31 June July Sept. Oct. Nov. 23 davs 17 2 5 2 Total No record from Jan. 52 days 1, to May 15. Total 124 days Jan. 22 days 1887 May 26 days June 16 June 14 July 17 Ang. 20 Sept. 13 Total 55 days - Total 73 days 1434 W oermami’ s Waterway Report.— Continued. 1888 Sept. 10 days Sept. 18 days Oct. 31 ‘‘ Nov. 30 Total 18 Dec. 31 Total 102 days No record from Apr. 1, to Sept. 4871 1889. Jan. 10 days Jan. 4 days Feb. 23 “ Feb. 5 Mar. 5 Mar. 9 July 4 Apr. 7 ‘‘ Aug. 12 May 10 Sept. 30 June 9 Oct. 31 July 4 ‘‘ Nov. 28 ‘‘ Aug. 2 Dec. 4 Nov. 2 Dec. 7 Total 147 days Total 59 days 1890. Ang. 10 days July 8 days Sept. 14 Aug. 21 Sept. 16 Total 24 days Oct. 31 Nov. 30 Dec. 27 Total 133 days 1891. (No record available.) 4872 1892. Aug. 8 days July 12 days Sept. 18 Aug. 23 Oct. 24 Sept. 12 Oct. 7 Total 50 days Nov. 30 Dec. 31 Total *115 days No record from Jan. 1 to May 3. 1435 1893. Jan. 14 days Jan. 17 days Aug. 27 Feb. 14 Sept. 30 July 23 Oct. 14 Aug. 4 Nov. 11 Oct. 17 Dec. 11 Nov. 19 Dec. 5 Total 107 days Total 99 days 1894. July 18 days Jan. 15 days Aug. 31 June 28 Sept. 13 July 13 Oct. 31 Sept. 11 Nov. 1 Nov. 29 Dec. 27 ‘‘ Total 94 days Total 123 days 4873 1895. Jan. 24 days No record first 7 days. Feb. 25 Mar. 4 days June 27 ‘‘ Apr. 12 July 31 May 25 Aug. 24 ‘‘ June 3 Sept. 10 Aug. 7 Oct. 31 Sept. 16 Nov. 27 Nov. 3 Dec. 14 Dec. 5 Total 123 days Total 75 days 1896. June 12 days Jan. 12 days July 26 Feb. 15 Aug. 6 May 17 Sept. 14 June 13 July 4 Total 58 days Aug. 21 Oct. 15 Nov. 4 Dec. 16 Total 117 days 1436 Woermann’s Watenvay Report. — Continued. 4874 1897. Aug. 25 days May 13 days Sept. 30 Jnne 17 Oct. 31 July 31 Nov. 13 Aug. 6 Dee. 9 Nov. 17 Dec. 22 Total 108 days Total 106 days 1898. Jan. 11 days Jan. 12 days Aug. 10 Feb. 9 Sept. 13 May 20 Dec. 8 Jnne 7 Total 42 days July 21 Aug. 21 Sept. 17 ‘‘ Oct. 31 Nov. 13 Dec. 15 - Total 166 days 4875 1899. Jan. 2 days Jan. 26 days Feb. 21 Feb. 3 July 4 Apr. 8 Sept. 11 May 8 Oct. 14 June 13 Nov. 10 July 8 Dec. 12 Aug. 18 Sept. 19 74 days Oct. 17 Nov. 20 t Dec. 12 152 days 1437 1900. May 1 day Jan. 17 June 11 Feb. 3 July 10 Apr. 2 May 25 22 days June 16 July 21 Aug. 19 Sept. 13 Oct. 31 Nov. 19 Dec. 19 185 days 4876 1901. Nov. Dec. 3 days 31 ‘‘ Jan. Feb. Mar. Apr. May June July Ang. i Sept. Oct. Nov. 28 days 28 4 8 22 28 29 21 30 31 27 266 days 34 days 1902. Jan. 31 days Feb. 1 day Feb. 27 Mar. 15 Apr. 2 “ Apr. 23 Sept. 11 May 6 June 4 71 days Aug. 18 • Sept. 14 Total 81 days 1438 ' Woermann^s Waterway Report. — Continued. 1903. July Dec. 4 days ■ 25 ‘‘ Jan. May June July Aug. Oct. Nov. Dec. 16 days 24 ‘‘ 24 14 9 6 30 6 128 days 29 days 1904. Additional days when there was less than 6". Jan. • 19 days Jan. 4 days June 23 Feb. 2 July 31 June 7 Aug. 20 Aug. 8 Sept. 28 Sept. 2 Oct. 8 Oct. 23 Nov. 8 ‘‘ Nov. 22 Dec. 25 Dec. 6 Total 162 days Total 74 days 4876a 1905. No discharge as follows: Additional days when there Jan. 20 days was less than 6" Feb. 25 Jan. 11 days July 4 Apr. 5 Oct. 6 June 7 July 19 Total 55 days Aug. 15 108 Sept. 10 Oct. 12 Grand Total 163 days Nov. 18 Dec. 11 Total 108 days 1439 1906. Jan. (Not given) May 8 days May 9 idaj^s Sept. 1 June 30 Oct. 13 July 30 Nov. 9 Aug. 30 Dec. 5 Sept. 29 Oct. 16 Total 36 days Nov. 11 Total 155 davs 36 • Or. Total 191 days 4877 1907. Aug. 19 davs Apr. 1 day Sept. 14 ‘‘‘ May 2 days July 18 Total 33 davs Aug. 11 ‘‘ 97 Sept. 3 Oct. 14 Grand Total 130 days Nov. 22 Dec. 26 97 days 4877a Eiverside Gauge Eeadings, Summary. No. of days when there No. of additional days Year. was no discharge, when there was 6" or less. Total. 1886 124 52 176 1887 55 73 128 1888 102 18 120 1889 147 59 206 1890 24 133 157 1892 50 115 165 1893 107 99 206 1894 94 123 217 1895 213 75 288 1896 58 117 175 1897 108 106 214 1898 42 166 208 1899 74 152 226 1900 22 185 207 1901 34 266 300 1902 71 81 152 1903 29 129 158 1904 162 74 236 1905 55 108 163 1906 155 36 191 1907 33 97 130 liiO W oermann, — Direct Exam. — Continued. 4878 Mr. Woermann further testified — in the year 1886 there were 124 days, when there was no discharge recorded at Riverside; 52 additional days when there was 6 inches or less; total 176 days. The record was not complete for that year. For the first two or three months I believe there was some lacking. No record from January 1st to May 15th. In 1887, 55 days when there was no discharge; 73 when there was 6 inches or less; total 128. 1888, 102, 18, 120. That means in each instance 102 no dis- charge — the first figure I will give will be no discharge and the second figure will he those times when it was 6 inches or less and the third the total of the two. 4879 1889, 147; 59; 206. 1890, 24; 133; 157. 1891, No record. 1892, 50; 115; 165. No record from January 1st to May 3rd in that year. 1893, 107 ; 99 ; 206. 1894, 94; 123; 217. 1895,213; 75; 288. 1896, 58; 117; 175. 1897, 108; 106; 214. 1898, 42; 4880 166; 208. 1899, 74; 152; 226. 1900, 22; 185; 207. 1901, 34; 266; 300. 1902, 71; 81; 152. 1903, 29; 129; 158. 1904,162; 74; 236. 1905, 55; 108; 163. 1906, 155; 36; 191. 1907, 33; 97; 130. Q. That is the last record I A. Yes, sir. Q. Is there any month in which some one of these years there has not been a period of no discharge. (Counsel for complainant objected as leading and sugges- tive in the highest degree; overruled.) A. I would not care to state without referring to my compila- tion. Counsel fok Defendant. Then we can figure it ourselves from this summary. Witness. I stated that I also made a summary or compilation of the number of times or months in succession when the stage of the river as shown by the Riverside gauge equalled 15 inches or more. I made that compilation for the period embraced in the navigation season of each year, taking the dates for the navigation season from the reports of the Illinois and Michigan Canal Commission- ers. 4881 (Objection and motion to strike out what he has so far said as being improper for him to say that I have done it 1441 for the navigation season. That is importing not only his opinion hut the opinion of somebody else about the navigation season, and I don’t think that should be done. It is irrele- vant and incompetent.) The Court. Yes, the navigation season may go off. If the re- port of the commission showed that, the report can be brought in here. 4882 In 1886 between April 1st and November 25th there were 11 days when the water — I will say in that connection that this does not include the month of April for the reason that there is no record for that month. If there had been such a record this number might have been increased to some extent. Counsel for Complainant. Then it will be May first if there is no record for April. I said April 1st to November 25th, because I have that column headed ‘‘Canal open” and I took those from the Canal Commis- sioner’s report. I give it in this year because those are the fixed dates for each year I have taken. 4883 11 days it occurred in May, no other day during that year. I mean 11 days where there was 15 inches or more of water. In 1887, between April 1st and November 19th, there were nine days in April, 14 in October; total 34. 1889 between March 25th and November 15th, there were 71 days scattered during various — during the months of from April to August, inclusive. The rec- ord for 1890 and 1891 is incomplete, so the next year I have tabu- lated is 1892. From April 1st to November 15th there were 29 days in May, 30 in June and 11 in July, a total of 70. 1893, 14 in April, 21 in May, 19 in June, total 54. In all subsequent years the period that is considered is April 1st to November 15th so I will not repeat that. 1894, 15 in April, 26 in May, total 41. 1895, 4 days in April. No other days that year. 1896, 16 days in 4884 April, 6 in May, 1 in June, 9 in September, 6 in October, 4 in November, total 42. 1897, 27 in April, 8 in May, 5 in June, total 40. 1898, 7 in April, 6 in June, 4 in July, 5 in November, total 22. 1899, 4 in April, 7 in May, 9 in June, 6 in July, total 26. 1900, 13 in April, 6 in August, 7 in September, total 26. 1901, 11 in April, no more that year. 1902, 15 in May, 19 in elune, 30 in July, 3 in August, 2 in September, 27 in October, 10 in November, 1442 TF oermann, — Direct Exam. — Continued. total 106. 1903, 24 in April, 5 in August, 26 in September, 2 in October, total 57. 1904, 24 in April, no more that year. 1905, 12 in April, 18 in May, 5 in June, 2 in July, 2 in August, 8 in Sep- tember, 5 in October, total 52. 1906, 21 in April, no more that year. 1907, 17 in April, 19 in May, 18 in June, 3 in July, 10 in September, 10 in October, total 77. Q. AVas there any year where for five months successively be- tween April and November 15th, there was 15 inches of water in the river? A. No, sir. Counsel for Complainant. That is cross-examination. That is objected to. The Court. No, this is simply on the results of his tabulation. (Objection overruled.) 4885 MTtness. As to whether during those 19 years when for 3 months in the year between the first of April and the 15th of November, a 15 inch stage successively occurred, there was one year when there was more than 90 days, but there were not three successive months. That was 1902. There was not any other year when there were more than 90 days whether successive or not. That completes my summary of the gauge reading. I have examined the profile, Cooley Exhibit 3 signed Lyman E. Cooley, January, 1908. I have compared it with the original 1883 profile in the United States office, and also with the published pro- file in the thick black volume of maps and profiles. 4886 Sheet number 26 of the profile of the Illinois and Des- plaines Eiver, plate 5 House document 264, p. 2511 is in the volume of maps which accompanies House document No. 264. It is the Marshall survey of 1889. Marshall’s report of 1890 and 4887 the profile that I am speaking of is the profile of 1883 as pub- lished in that volume. That was prepared under Major Marshall’s direction from the original field notes of that cross section, which were prepared by Mr. Wheeler — under Mr. Wheeler. He took the field notes of 1883, platted them and published the plat. But it was not a republication of a map that had before that time been published, as I understand it. I have observed some differences between the profile represented as that of 1883 on Cooley Exhibit 3, and the original Government map showing 1443 that profile. The greatest differences I have observed is in connec- tion with the depth of water shown in the vicinity of Treat’s Island. The profile submitted by Mr. Cooley shows a depth of water at the foot of Treat’s Island of 2 feet, whereas the original shows a foot and 7/10. At the head of Treat’s Island Mr. Cooley’s profile shows 2 feet 8/10, and the original and also the published copy shows one foot. 4888 I am familiar with the profile of 1867. The width of the stream would not be determined from the profile, but the depths of water are shown there. They are much less than the depths of water as shown on the profile of 1883. The increase shown in 1883 over those of 1867 is usually varied at different points. For example, at the mouth, on the elevation at the mouth, the 1867 profile showed 4/10 of a foot, whereas, the 1883 profile shows a foot and 2/10. That 4/10 of a foot is a short distance above the place where we are building our dam, perhaps 4889 a quarter of a mile. A similar difference occurs on the rapids at Joliet. The profile of 1867 shows 5/10, or half a foot. The 1883 profile shows a foot and 2/10 or a foot and 3/10, something like that, I don’t re- member exactly. The contributions that have been made to the river after 1867 and before 1883 were the water supplied by the Illinois and Michigan Canal through the pumps at Bridgeport. Also through the deep cut in 1871 and subsequent to that. The amount of water that was added by the deep cut of 1871, I have seen it variously reported, forty-five to sixty thousand cubic feet per minute. The low water discharges of the Desplaines Eiver in its natural condition was, some of the early measurements show a vol- 4890 ume as low as 17’ cubic feet a second; that is at Joliet. Other measurements show that there is absolutely no discharge. I am familiar with the slopes and depths of the Desplaines Eiver. I have consulted all of the Government surveys’ reports, maps, plats and profiles. The earliest ones that I recall, that I have consulted, the earliest in point of time, was in 1867. 4891 Q. Will you describe generally the river as you have learned from observation and from such sources as an en- 1444 Woennann, — Direct Exam. — Continued. gineer you have recourse to or have had recourse to as to the na- tural condition of the river, and as you have now recited? Counsel for Complainant. I object to ‘^the natural condition” of the river. He has already testified himself that it has been al- tered so radically in many directions that the testimony of the wit- ness as to the natural condition of the river is giving nothing but a series of irrelevant, incompetent and immaterial conclusions of the witness, and they blend data from many documents with per- sonal observations made in the years in which he has referred to, which were long after the things occurred. 4892 The Court. I think you would have to divide that up, Mr. Scott. Counsel for Defendant. I will take out the personal observa- tion then. Give simply the result of your examination of the sources to which you have referred in your last answer. The Court. He may answer that. (Objection on the ground that to make this clear and defi- nite that his answer should be made seriatim with reference to the different things, instead of blending some 8 or 10 sur- veys and say now I have looked at ten surveys and I conclude from the ten surveys that the natural condition of the river is this, — overruled.) Counsel for Complainant. It may be understood that the ob- jection I have made stands to all the further questions along this line. 4893 The Court. Yes. A. I should add to my former statement that anything I should say as regards slopes was based on the 1883 profile. Coun- sel is correct in saying that it would be impossible to blend the different surveys. The fall of the river from Lockport to Joliet is about 38 feet in 4 and a half miles. From the foot of Dam No. 1 at Joliet to the head of Treat’s Island, or to the head of Lake Joliet, there is a fall of about 21 feet in three and a half miles. Then comes the pool known as Lake Joliet about five miles long with practically no fall. Then the rapids at Treat’s Island, where there is a fall of about 9 and a half feet in one mile. Then a pool about one mile 1445 long where there i§ practically no fall. Then the rapids at Smith’s bridge where there is a fall of I think 2.7 feet in one mile. Then the pool which is sometimes called Lake DuPage, where there is a fall of 2 feet in about 3 and one half miles. Then the rapids at the mouth where there is a fall of about 3 and one-half feet in one- half mile. The bed of the river from Lockport to Joliet on down to Treat’s Island is — on down to Lake Joliet is rock covered with numerous bowlders, islands in places covered with more or less timber. At Lake Joliet that bottom is soft. At Treat’s 4894 Island the bottom consists of — it is a hard bottom covered with numerous bowlders of all sizes, some immersed and some projecting. At Smith’s bridge also near the mouth the bottom is covered with bowlders and the depth of the water is (prite vari- able. In going down over the river in a skiff in 1889 we got aground at a number of places and two of us had to get out of the skiff and drag the skitf over the gravel bars. We also found great difficulty in dodging the bowlders and struck them a number of times. In the vicinity of Brandon’s Eoad, in the vicinity of Treat’s Island is where we struck those bowlders. At the mouth we al- most capsized, in those rapids, the waves were so high. The river is tortuous and the channel quite narrow in places. The narrow- est place was near Joliet where, on one side of an island which was subsequently excavated by the Sanitary District there was 60 feet on one side and 40 on the other. Other places there was widths of 80, 90 and 100 feet. I have completed my general description of that part of the river. I have spoken of certain slopes being at so much per mile. I have not included in those statements the maximum slopes on that river. There is at Treat’s Island, for example, 9 feet and a 4895 half fall in the length of the island, but you take certain portions, the slope is very much steeper than that. Well, in the main channel near the head there is a slope of 17 feet to the mile. Near the foot there is a slope of 18 feet to the mile. Over in the right hand channel there is a slope in one place of 50 feet to the mile, — perhaps for a distance of 500 feet or so, or a still shorter distance you could find still steeper places. 4896 Well, at Smith’s bridge where I gave a fall of 2.7 feet in a mile, if you take the steepest portion probably it would be 1446 Woermann, — Direct Exam. — Continued. 10 or 12 feet to the mile for a short distance near the bridge; perhaps for four or five hundred feet. The same way at the mouth where I gave the fall as about 3 feet and a half a mile. The fall at one point was steeper than anything I found at Treat’s Island, that is, steeper than I found in the main channel at Treat’s Island, I should judge 20 feet to the mile. I do not remember the exact figures for the mouth 4897 of the river approximately 20 feet to the mile, — that would be for perhaps three or four hundred feet. Eeturning again for a moment to this profile of 1867, that shows at the mouth or near the mouth of the river a dam. (Objection on the ground that the profile is in evidence and speaks for itself; overruled.) 4898 Q. Do you know of any map which shows that dam, and if so what map? (Objection as calling for the contents of a document; over- ruled.) A. The map of 1867 shows the dam at the same point. The profile has been referred to in the evidence in this case; I don’t think the map has. Q. What were the depths of the water as shown on the report, at various places by the profile of 1867 ? (Objection to question as irrelevant, immaterial and not the best evidence; overruled.) A. I will have to refer to some notes. I have made notes taken from the survey. I cannot find them right now. Q. Then we will drop that for the present. Do you know whether or not the year 1867 was an unusually low year or a nor- mal year, or what it was generally, as to the stage of the 4899 water? A. I can only judge from the gauge readings for that year and subsequent years. Q. What is your conclusions from the gauge readings? (Objection to answer as a conclusion; overruled.) A. That was not an abnormal year. The river below Lockport I was not very familiar with pre- vious to the opening of the Drainage Canal. I saw it at places. 1447 but this year I have been over a great part of it up as far as the Irving Park Eoad. Irving Park Road is five miles north of Madi- son street. It is 55 miles from the mouth. I did make an examination of the bridges crossing the Desplaines River from Lockport to Irving Park boulevard. I have tabulated all of the bridges and their character, the length of span, character of piers and abutments from the mouth up to Irving Park road. I found fifty-three bridges. Counsel for Defendant. Well, will you look at that, Mr. 4900 Starr, (showing document produced by witness)! This con- tains practically all the data that I would desire to bring out by an examination of the witness I think, and if — The Court. By agreement that may go in as his verbal state- ment. Cross-Examination. This list or schedule which I have handed you, simply includes the bridges; it does not include the dams. I made that examina- tion since the beginning of this suit at various days. I have spent four days going over that part of the river at different times; namely since April, 1908, — during May and June. And this docu- ment which I produced as a tabulation of the observations which I have made in the last two months has itself been made within the last week or so. 4901 Well, I would not go out and look at a single bridge. I would go out and cover all I could see in that day; go out again when I could and put another day on it, covering a certain stretch of the river each time, each trip. I stopped at Irving Park because I did not have time to go further. And it represents the conditions as it is at this time. It is not back of that. Of course, most of them must have been in existence before that, but it rep- resents the present examination. I would like to have the record show that those lengths of span are not exact. I did not measure them with a tape, but simply paced them, so that where I got a bridge 150 feet it might be 147 or 152. (Objection to the entire body of the testimony as 4902 irrelevant, incompetent and immaterial; objection over- ruled.) 1448 Woennann, — Cross-Exam. — Continued. Counsel for Complainant. Then we object to it — I will raise the other form of objection — here you have got them numbered, one, two, three, four, five, six, seven, eight, nine. Where is the one that is next above dam number one? A. Above Dam number one, the Euby street bridge. That is number ten on this tabulation. Q. Does that cross the basin! A. Yes, sir. Q. And then you jump to a tow-path bridge. Is that across the basin! A. The tow-path bridge is at one side of the basin where the Desplaines runs into the basin. Q. The rest are above the basin! A. Yes, sir. Counsel for Complainant. We will object to all of these above the basin where the drainage canal and the river merge, as irrele- vant, incompetent and immaterial. The Court. Overruled. It is agreed that that document may go in as stated before, and have the effect of oral testimony. Counsel for Complainant. Sure. Counsel for Defendant. And I will have a copy of it made at the noon adjournment, if not sooner. Direct Examination Continued. Said document was received in evidence, and is in words and figures following, to-wit: 1449 CP ^ sh d ‘-'2 S-. c3 O > OJ I a a c3 W <1^ . rt ;-. 0 OJ •-O > 1 p^ 'i o GO 2 ^ bC ci (P =4-1 o t).S *-J >■ . ^ a H 2 I— I w > XS w M 1 ^ cl ^ c Ph o; HQ p ^ § pp o ^ CP fcJO cc'^ >^'C Qpp ’^S d c • C Si HH -C a c 'C Si' _a.2 t ^ '5 o C ri go ^ 1 C bJO ^ ■Td o •2 c /2 1 • o .2 2 biO -i-T CO . Q§2 . 1 -H J-H 1 -H CO CO ^d 3 jS CO b iP^S d O H.:> iH . 1 d bC 'l* ^ 0 Si H T 3 P > Si f? Cl PP c o3 >4 o p P bC Oh Q PP .2 d2 d b£) Q ti Ph S yc o o o o CO O (d o 1 — i I— ( co o O O 00 o CO O CO d 1 1 -^ d uo 00 O 00 I I C.d O Si _ 0^0 ^ p M o b£) P^Ho p P bJD bjC'^ >> Q pp « p bJ3 PP P bC "si PP 'd c 3 o _ p:? gD C o o d 03 o C Q OQ C 2 ^ o bC C 3 O PP Oi oi »o CO (M ^ ^ CO uo O o coO OC 2 CO P O Oh 01^05^0 looO <3 UOCIIOOOIOO COOOOO^O^XCO ^I^OOCOOOIT-ILO I I l^d ' — ^OOt—Ii — I I— ( dc 'Td d Lo PQ u< 5 dd O) 5 g§ o® d 0 ."n ^ 0 _ d £Ph ^ °o •4^5 (D d £ = ear 39 piers others S CD 0 d 0 5 o d o d:5 ^ O ,g s" H S 00 0 0 0 000 CO CO 0 000 so 0 1 o ‘a 5^ £ o .d PhH H H ui ri HH dp 03 dP 0 dp dp dp ci 0 Si d 0 bJO d 0 Si d 0 £ bC— Ci 'n •+i 0 (D d 0 bC d -&2 d PP d ^ -d d 0 0 pt| PP ^ a bC -d M PP PQ CO fcX) d >> PP d o -::3 d ®PQ^ d ■ < bjD C bC c OJ bC |l'^ •n’J^PP ^^PP 1 id p^pp^ pd HH H-J O CD bC d c3 •O • o3 .-.q o ^ « m pq’£ > ^ < pd - H. iPP^ CO • c3 cy O • d " b£Pp.q O ^ tH PhC; Ph (O > u CD , o £ g O § c3' o o 00 o 00 o o f-i CQH ■si O , ^ rD ' WP 4 6 bJO x: o g ’So W cT o 0'S T3 o3 d c o bJD ‘C O 's-i O H O » o « o £ o bcH bJOa O c o bC' c3 o 'P o .'^ "cS c3 WP?W (d o b£) .'H p:^ a; m 'HOD ^xi SoH 2 ® H 73 W C 3 s ^flS ^ . H H .■O D o • „ 2 2 bcH rH O r-i T^^ bC^ ^ ' D c3 00 05 Oi ^ TtH =3fQ ^ D .2 ^ >-r 05 O lO ID uo CO lO T}^ CD 00 05 o uo uo 1452 Woenna yin, — Direct Exam . — C o ntinu ed. 4905 Thereupon counsel for complainant requested that his objection might stand to all interrogatories about the bridges. The CouET. Yes. The Witness. The bridges shown on ‘‘Woermann’s Exhibit 1,” June 13th, none of them have any draw or any provision for per- mitting the passage of boats. This schedule shows one was a pon- toon bridge. The pontoon bridge is known locally as the golf bridge. It is directly opposite the point where the Chicago, Riv- erside and LaG range Electric Road turns from a westward di- rection to a southerly. It floats on the water. There is not a bridge across Lake Joliet at the present time. There was at one time a bridge there ; parts of the bridge are still there, I think.^ It was a wooden trestle railway bridge. I 4906 saw it when I went down there, — a railroad^ trestle ; that is, what was left of it when I went down the river in 1887 was a railroad .trestle. It crossed Lake Joliet perhaps a mile and a half above the lower end. It is shown on this map, ^‘Woermann Ex- hibit 4” (Atlas, p. 3980; Trans., p. 6634; Abst., p. 1934). I know what effect high water has upon the slopes of streams. Almost invariably it flattens out the steeper slopes which occur at low water. All the measurements given by the Government in its reports on rivers that I have ever seen were at low water. (Objection, as not the best evidence; overruled.) 4907 Witness. The worst places are at the vicinity of Bran- don’s Road and at Treat’s Island, very abrupt turns. I measured the width on the Government map in a number of places and put the width in figures in this ‘AYoermann Exhibit 4.” I could not recall exactly what they were at various places. At the small island which formerly existed ,just below Jefferson street, the width was sixty feet on one side and forty feet on the other. That is the one I have already referred to. 4908 At the first large island below McDonough street, the channel’s greatest width was 211 feet, but the channel where most of the water goes is 150. At the second large island above the Brandon Grove bridge the width is 168. I should say that 1453 these widths were measured from the survey of 1899, the Siddon Survey; that is before the discharge of the Sanitary District waters. Between the island just above, immediately above Brandon’s Koad bridge, the largest opening is 90 feet. Just below the bridge the — opposite the island, one opening is 118 and the other one 48. The widest place in Treat’s Island — in Lake Joliet — the widest place in Lake Joliet is 1,050, and the narrowest place 250. That is the widest place on the river; that is, measuring only the water. If you measure across a place like Patterson’s Island and included the island, of course, it would he wider. Just below Treat’s Island bridge in the main channel the widtlT is 96 feet, and at the lower end 120 feet. Just below the mouth of the Du Page Biver the width is 160, and just above the mouth of the river 180 feet. The points where I said the turns were very abrupt were be- tween these various islands, in the vicinity of Brandon’s 4909 Eoad, and then several points along Treat’s Island, partic- ularly at the head, right immediately below the present bridge, where there is a projecting point on the left hand bank extending nearly halfway across the river, and then against the mouth. I found three dams in the territory which I covered. There was a concrete dam known as Hoffman’s Dam at Riverside; a small timber dam just below where the Chicago & Northwestern Rail- road crosses, and a small timber dam in Schiller Park, just above the Irving Park Road. Not any of these dams have any lock or opening for the passage of boats. Counsel for Complainant. It is only by means of the answers that the location is developed, and I would like simply to save time and simplify the record to put the question to him and make it the basis of a motion right at this point. These three dams to which you have referred are all of them northerly in the 4910 river from Riverside, are they not, north of this Riverside gauge, up-stream from the Riverside gauge! A. Yes, sir, up-stream from the Riverside gauge, a good many miles above Joliet, — Riverside is 28 miles above Joliet, and these are above that. 1454 Woermann, — Direct Exam. — Continued. Counsel por Complainant. I move to strike out the testi- mony with reference to these three dams, as it now appears that it is irrelevant, incompetent and immaterial. (Objection, overruled.) I have examined ‘‘McCullough lExhibit 1’’ and “McCullough Exhibit 2’’ that are introduced in evidence in this case. Those maps exhibit the sinuosities of the Desplaines Elver, to some ex- tent; not fully, on account of the fact that the scale is too small to show abrupt turns. The Court. What are these maps that you refer to ! Counsel for Defendant. These are the ones that were 4911 referred to in the hypothetical question and were the basis of the hypothetical question so far as sinuosities and turns were concerned. The Court. That is an inch to a mile? Counsel for Defendant. An inch to a mile. The Witness. Two inches ; that is two inches to the mile. Each section is two inches. (Objection to the line of testimony on the ground that the purpose of the question was to attack the hypothetical ques- tion of complainant and that such an attack should have been made when complainant’s witnesses were testifying; over- ruled.) 4916 Well, a map on that scale cannot show all the small pro- jections. For instance, a sharp projection just below the bridge at Treat’s Island and some irregularities, small, but still projecting a considerable distance into the river, are shown. Furthermore a large number of islands which occur in the river where the sharpest bends are, are not shown at all. 4917 I found that in every month of the year at some time during that period the river had been dry during each of those nineteen years for which I have gauge readings. I do not mean for each month in each year, but for example take the dry months, July, August, September and October, this river would be dry in those months almost every year. Then perhaps for half the number of years it would also be dry in — I do not mean that there was a day in each month — at least a day in each month 1455 in each of those years in which it was dry; nor do I mean that there was a day, at least a day in some months of each of those years in which it was dry. I mean that you can find a day in each of the twelve months in at least one of those years when the river was dry. 4918 I have examined my notes of the profile of 1867 with a view to answering' the question asked me as to the depth of water shown by that profile. I found them during the noon hour. At Joliet the depth was six-tenths of a foot in two places. In my testimony this morning I referred to that as five-tenths by mistake. When I say six-tenths of a foot in two places, that means that is the depth in the channel along the line of greatest depth. In Lake Joliet the depth varies from 3.8 to 20 feet. At the head of Treat’s Island 1.4; at the foot, or near the foot of Treat’s Island eight-tenths of a foot. In the pool sometimes known as Lake Du Page ten feet. At the rapids near Smith’s bridge, 1.2 feet. The pool just mentioned was not Lake Du Page, that is the pool a mile long just below Treat’s Island, in Lake Du Page, four feet to twenty feet. On Beard’s Dam, nothing and on the rapids at the mouth four-tenths of a foot. 4919 Q. State whether or not in your opinion the Desplaines Eiver from Lockport to the mouth is a navigable stream, capable of carrying useful commerce? Counsel for Complainant. Objected to for lack of foundation on the part of the witness. The Court. He may answer. A. No, sir. Counsel for Defendant. Was it prior to the turning in of the water from the Drainage Canal. Counsel for Complainant. The same objection. The Court. The same ruling. A. No, sir. Counsel for Defendant. AVas it prior to the deep cut? Counsel for Complainant. The same objection. The Court. The same ruling. ; 1456 Woennann, — Direct Exam. — Continued. A. No, sir. For several reasons; the depth is too shallow; the slopes are too great; and on account of its rocky bed and great nnmher of bonlders and other ohstrnctions, its narrowness and crooked- ness. 4920 The document known as ‘ AVoermann’s Exhibit 4” is a map of the Desplaines Elver from Lockport to the month, based upon the Government surveys of 1867, 1889 and 1899, drawn by W. F. Millar, nnder my direction. Mr. Millar is a draughtsman working for — employed by me. I supervised the making of this map. It does correctly represent what it purports to represent. Insofar as certain dams which are there represented on the river are concerned, there are several of them which are not shown on any Government maps, and which I platted from the testi- mony given in this case, and in the answer prepared by tile 4921 defendant. The dams shown upon this stream are in exist- ence or have been in existence. Of those shown oh this map. Dam No. 1 at Joliet is still in existence; the rest are all gone. Some of the bridges shown are gone. The one across Lake Joliet, and one of those just above the penitentiary and one of those in Lockport are gone. That small island at Joliet has been removed. As to bridges and dams, except for those which I have mentioned, the map does show them as they now exist. 4922 Some of the other islands are partly covered since the Drainage Canal has been opened. At the time of the 1899 survey they were all in existence except that small one at Joliet. Muth those exceptions, the map then accords with the condi- tion at the time of the 1899 survey. Cross-Examination: I did not put on this map a stretch of country nine miles 4923 wide. I do not show any topography upon it. Those are rectangular lines which were used as co-ordinates in platting the river, but where there is jiothing more than those dotted lines, why, I do not consider that a map of the country. Those lines do not correspond with the section lines. AVhere they cross the river they are approximately section lines, but they are not exactly — 1457 The figures 25 means — towards the top of tlie map from the words written here: ‘‘Proposed dam of the Economy Light & Power Company/^ — refers to the number of that section. That means Section 25. The dotted lines are four-inch squares, representing the sections. The dotted lines on this square around that 25 4924 represent the limits of that section, approximately. Those dotted lines approximately represent section lines. And the map, in order to get as long a stretch of the river on as short a piece of paper as possible, does not have its top north and its bottom south, but the north and south line runs at a diagonal of perhaps 45 degrees to the left. The point at the top of the map where the first dotted line leaves it is nine miles distant from the point where that same dotted line reaches the bottom of the map; that is, those two represented points are nine miles apart. That simply represents and is intended only to represent the Desplaines Liver, and inci- dentally the canal is shown, but outside of that there has 4925 been no attempt to show anything. And that is what I mean when I say that it does not embrace an area that, measured on section lines which are diagonal to the map, is nine miles wide. But the first which is approximately the top of the map would be by section lines approximately nine miles away from this on the cross line at the bottom of the map. Those lines are that dis- tances apart according to that scale. I have put here on the map, for instance, “Beard’s Dam, 1883.” Phrases like that, various labels, dam and aqueduct, where quali- fying adjectives of that kind are used, — I do not purport to set forth any information of my own. The aqueduct is spoken of as abandoned on one of the Government maps. I think that repre- sents it correctly as it was in the year 1899, with the exception noted, that small island at Joliet and the bridges and dams which have been referred to which formerly existed, but did not at that time. So far as the shore lines go, and the turns and the sinuosi- ties and the width of channel, they are given in figures. I 4926 think that is correct with the exceptions noted. These notations of dams and bridges do not speak of any specific time. There never was a time when the river assembled 1458 Woermann, — Cross-Exam. — Continued. all of the various dams and bridges which I represent as cross- ing the river. There may have been times when they all existed at once. I do not know. That dam just above this railroad bridge at Lockport was there in 1899. There was no Norman’s Dam in existence in 1899. 4927 Part of the dam at Treat’s Island was there in 1899. I don’t know just what evidence there was there, but it was shown on the Government maps. I did not make the survey of 1899. I know nothing about any other dams being there in 1899, to my personal knowledge. I have no personal knowledge of there being any such; and that is true of all these other objects at dates anterior to the date when I first examined the river. The map I did not intend should represent the physical condition of the 4928 river as it was at some one particular time. It is an as- sembling of divers different data from divers different dates; some of which were of a period long anterior and some long sub- sequent to any medium date between the earliest and latest date mentioned, — I don’t know how long anterior, an indefinite period anterior. I mentioned the Government maps which I consulted and I think I mentioned all sources from which I obtained information of the different objects. Outside of the Government report, the information as to those numerous dates concerning dams were taken from the testimony in this case and from the answer of the defendant published and printed. 4929 I am unable to state whether it is based entirely on the testimony of the defendant, or partly on — My testimony here of Daggett’s Dam; question-mark in parenthesis, 1839, was based on the printed answer of the defendant. The signifi- 4930 cance of the question-mark in the parenthesis means uncer- tainty about the date, not as to the dam. In the absence of specific testimony I used the printed answer of the defendant as the basis. Counsel for complainant objects to the offer of the exhibit on the ground that it is not sufficiently shown to be based on ac- curate and competent data, and not upon data which are produced; overruled; and said map was received in evidence. (Atlas, p. 3980; Trans., p. 6634; Ahst., p. 1934.) 1459 Direct Examination Continued. The document to which my attention is now called, as yet un- marked, a map of the Kankakee River Valley, from the mouth of the river to the Santa Fe Railroad bridge, showing the area to be overflowed by the proposed dam below the mouth of river, scale one inch equals four hundred feet, (witness shown map. Atlas, p. 3981), was surveyed and platted under my direction in connection with the survey for a 14-foot waterway, for the purpose of show- ing how much land would be flooded by the Illinois and Kankakee Rivers by the construction of our proposed dam below the mouth of the river. It is a blue-print made from the Government map for that purpose at the time of the survey. 4932 It does show approximately the location of the Kankakee Feeder. The party I had in the field did not make an exact survey of the feeder or of the Kankakee cut-otf, but that repre- sents approximately the location. It is correct in so far as it shows the sections, the quarter sections over which it lies. Counsel for defendant offered this in evidence, to be marked ^‘Woermann Exhibit A, June 13th.” (Trans., p. 6636; Abst., p. 1935.) Cross-Examination. I made this map more than anyone else. I was in general charge. There is no map that in these days is made entirely by one individual any more than a modern office building is made by one individual. I had general charge of the survey and of the mapping. I looked over the field notes, kept track of 4933 the field work daily to see that everything checked, and watched over it daily. I saw that the azimuth checked, and I saw that when the lines were platted that the loops closed, that the work was correctly platted. I saw a great many other things. I saw that it was correctly platted, with the training and experi- ence which enabled me to use in looking after work of that kind. By loops I refer to the station lines which were run in the field. They are not depicted here. Q. What is there that is depicted here that you personally did check? A. The lines that are depicted there are based upon the station lines which were run in the field and platted. 1460 W oermann, — Cross-Exam. — Continued. 4934 Q. Answer my question, please. (Question read by the reporter.) A. Everything. The section lines on that map and on all other maps which have been prepared under Government direction are only shown approximately. We found all the section corners in the field that could be found readily by inquiry or by observation. If there was a fence line on a section line that fence was located. It is impossi- ble for any man when he has^made a survey of 866 square miles to keep in his mind what he has done about every particular section line. 4935 Counsel for Complainant. What did you do with refer- ence to checking the line as shown on this map? A. I could not pick out a particular line on that map — Q. I have picked out this particular one and asked you to tell us what you did? Counsel for Defendant. I submit, if your Honor please, he has answered it. A. I don’t remember. I don’t remember what I did do with reference to checking the shore lines of the Desplaines Eiver on that map. I did do something. Q. But you cannot tell what it was? A. I never let a map go out of my office that I do not do a good deal of checking on, not one. Counsel for Complainant. I move to strike that statement out, if your Honor please. (Sustained and answer struck out.) 4936 On the map here the section line has got a jog of half an inch at that point. That is not unusual on a township line. It isn’t a fact that the section line between 31 and 32 north of the township line and five and six south of the township line jog about half an inch on this sketch, is at all unusual. In making this map I had only in mind at the time the object that is recited in the legend upon the map, showing the part to be overflowed. That was what was in my mind when I was making this map. 14G1 When a map is prepared for a special purpose of that kind, to disregard details which would not atfect that object, frequently is done and should be stated in a note. I don’t know what that note says. I have not looked at that map for a long time. I did not know it was up there. As to the phrase, ‘‘Kankakee Feeder, abandoned,” which ap- pears in two places on that map, — that word “Abandoned” 4937 was put there by my direction. That was an expression of a conclusion I reached at that time ; not alone me, the party in the field and the farmers along the line, everybody we talked to about it ; my own observations, the banks cut through, fences across it, aqueduct torn down, solid earth embankments built across it, two railroad embankments across it. Those things I just 4938 mentioned were not picked up from any farmers, they were observations of my own. I included all that in my sources of information. Thereupon counsel for complainant moved that the label re- ferred to as “Kankakee Feeder abandoned” ought to be erased from the map. (Objection overruled and said map was admitted in evi- dence, Atlas, p. 3981; Trans., p. 6636; Abst., p. 1935.) 4939 When I made this map I had not ever been in the employ of the Economy Ifight & Power Company. I had not ever heard of any such contemplated enterprise as the erection of a dam at Dresden Heights. I did not know Mr. Munroe. (Witness temporarily withdrawn.) Geoege H. Monkoe, for complainant, testified as follows : Direct Examination. My name is George H. Monroe; residence Joliet; my busi- 4940 ness is mortgage loans and real estate in the summer season. In the winter it is raising oranges. I have lived in Joliet since the fall of 1862. I was eighteen at that time. I was in Will County before 1862. I was taken as a little boy fourteen miles south of Joliet on a farm. My father moved there in, I think it 1462 Geo. H. Monroe, — Direct Exam. — Continued. was the spring of ^50, about ’51, the fall of ’51, perhaps. I only recollect once seeing the Desplaines Elver until I moved to Joliet. That was in the early summer of either 1853 or 1854. I saw it at the ford near Channahon, crossing the Desplaines Elver; no bridge, but a ford. My grandfather and uncle started for Cali- fornia at that time with ox-teams, and father and 1 accom- 4941 panied them down to the bank of the river. AVe nearly tipped over, the oxen running the wagon up on to some large hard-heads, sometimes called nigger-heads. I was very -much frightened, and my recollection stayed with me a long time. Not a large amount of water; the water perhaps at that point in the ford might have been two feet deep in places, not all, and a great many hard-heaUs or nigger-heads in the channel. I moved to Joliet in 1862 ; I have seen the river, not every day, but a great many times since 1862, particularly since the spring of 1863. I had occasion to see the river a great many times. For two years I was travelling about the county as deputy sheritf for that time. I commenced going into the country in 1863, the summer of 1863, and 1864, and the winter as well. I did most of the outside work of the office, errand boy. I had occasion to see it frequently dur- ing those years. The parts of the river that I became fa- 4942 miliar with were from Channahon up to Eomeo, north of Lockport. The condition of the river above Lockport in tlie days before the deep cut was made in 1871, was that the greater part of the year there was not very much water in the channeL There were holes, wallows perhaps ; a good deal of stone and nig- ger-heads in many places. One could at dry times almost go across it with shoes on with a little care; easily with the old fashioned leather boots. By the expression ‘‘very little water during the greater part of the year” I mean very little water running in the stream. Expressing that in the quantity of water, I don’t believe there were six inches of water on the level, some holes deeper. Be- low Joliet prior to 1871, I have often crossed the stream at differ- ent places, and many times wading in the stream, fishing. 4943 Aly knowledge of the stream in fhose days went as far as the ford at Channahon, but more especially from below Joliet, below what is known as Alalcolm’s Dam, and then at Treat’s Island. um The condition of the river before 1871 from Joliet down to Chan- nahon was that the channel along the rapids some ways below Joliet, perhaps for half a mile down to near Brandon’s bridge, there was pretty shallow places around Treat’s Island, not enough water to pole a row boat up-stream. You might float one down perhaps, carefully, have to step out once in a while. That condi- tion would remain a good many months of the year. The sea- sons, of course, varied. Sometimes there would be a wet season when we would have a great deal of water, but there was times in the winter months that the water was as low as in the summer. In the ordinary season, after the subsidence of the spring floods, from that time up to say November first of that year, the water was very low, barring sometimes we would have summer floods and 4944 they would not last long, a few days. By the expression ‘?ek Falls was the worst. Copper Creek Falls is a perpendicular fall of about 18 feet and at about 200 feet or 250 feet below the fall where it pitches over there is a cliff about 150 feet high standing right at right angles 5145 with the current. The current has gone through there and the drift has disintegrated the rock unitl a part of the cur- rent runs under the cliff. As you pitch over this cliff it seems as though the boat were going to smash her brains out. You get a lot of water pouring off, there is a big river, and you go off there about 18 feet fall there, of course the supporting water will hold it up at an angle probably— ten degrees, probably, ten degrees is pretty heavy. Anyhow the water runs very fast. Q. Do you know where the place is they call the Seventy Mile Canon, or don’t you remember that? A. I don’t know. There was no one aboard who had ever seen the river before, we 5146 did not know where we were going. We found quite a num- ber all the way from 10 to 15 foot falls, all the way down. There are a few miles at one place we found where the river had to go through a clay bank with granite boulders. They had fallen in until the granite boulders were laying just as steep as they could lay and the water was going down there, and I assumed there was about 200 feet of fall in about four miles. It looked like going down a chalk line, it was perfectly white. I stood in the pilot house and I could not see the water on either side. It was perfectly straight, I could see the water ahead but I could not see the water on either side of the pilot house. I suppose 5147 the water there was about 70 or 80 feet wide. 1 saw just the banks, fallen in, the rocks, the granite boulders that were lying there all the way, from the size of your head to 6 feet in diameter. That was located below the Copper Ledge Falls and 60 miles above Salmon Eiver. AYe kept on encountering rapids. Finally we got to the mouth of the Imhaha, the Imhaha Eiver where the Eureka and Fargo mines are located now. There we found very difficult rapids. It poured through, these granite boulders had fallen in and there was — a reef comes this way on 1539 this side (indicating) and there is a basalt reef and granite boulders pn that (indicating) at right angles to the l)ank of the river. And then at a point shifting out there, they had been 5148 shoved out there by a water spout and washed down and forced it right in there so that it makes that part circular rapids. The boulders project out into the stream out of the water, perhaps there is 100 feet to spare, but it is very crooked there and quite dangerous. When you get a little further you come to Sheep Rock, there is where the steamer Imhaha was wrecked. The captain was going through and^ had out a line there and pulled her through, but they were a little careless, or his men were careless in throwing the line overboard and it caught on the wheel and she turned down and ran on one side, one end on one side and the other on the other, right across the river. They jumped ashore as soon as they could and she 5149 just backed right otf and upset a little way below. The Sheep Rock projects some out into the stream at that point making rather a narrow stone clitf there. The Priest Rapids is stronger than that, it (Sheep Rock Rapids) is a little bit stronger than Palouse. It has got a clitf there at the side like the Priest Rapids, about four or three miles below it goes into the Salmon River. Where the Salmon River comes in it is more or less broader. Then the water throws out on the right side and there is a bar there probably 60 or 70 acres. After it passes 5150 there its speed is about 7 or 8 miles an hour. I think it is fifty miles from the mouth of the Salmon River to Lewis- ton. For the fifty miles down stream it takes about two hours or two hours and ten minutes to run the distance. To go up stream it takes about 8 hours. I have gone up the Salmon River to the mouth of the Imhaha. That is as far as they ever have been. In ’64 I was on a boat that was sent up there by the 0. T. N. Company and tried to get through this Snake River canon and we got up about 25 miles above Salmon River and struck one of the bars that went across the river and knocked 14 feet of 5151 her bow otf and we turned around and came back. 1904 I believe it was when I quit the railroad, quit the company and went onto the Snake River, and was running up until De- cember, 1906. 1540 Gray Cross-Exam. — Continued. Q. And in 73 or ’4 when everybody went broke all through the country you went into the butcher business? A. Oh, no. Q. Wasn’t that the time? A. ’93 when they all went broke, I didn’t go into the butcher business then. Q. When was it you took up the butcher business? A. That was in ’73 and ’4. Q. That is what I say, in ’73 and ’4 was when some of us think was the worst panic we ever had? A. We didn’t know anything about it that far out west. I ran up Clear Water in 1863. 5152 It joins the Snake at Lewiston, Idaho, comes in from the north, no the east, comes in from the east. I went up it about twelve miles to the Lapway Agency. Q. Have you been there since? A. Not on the river. Q. There is a railroad through there now is there not? A. Yes, sir. Q. That is quite a common experience out there where the railroad parallels the river, isn’t it? A. Yes, sir. They tried, there was a boat running on there a few years ago, tried to bring wheat down but they made a failure of it. Q. Your idea would be then. Captain, that a river should be navigable if it was the only way to go, but not navigable if there was a better and cheaper way for a railroad along side of it? A. It is possible to take some boats where it is not — would not be practicable. Q. Meaning by that now it would not pay? A. Where it won’t pay. Q. Yes, and you mean to be understood in that sense when you speak of streams being practically navigable or practically not navigable? A. Yes. 5153 Q. . And then its character would vary in that respect with the development of the country? A. Yes, sir. Q. And the other means of transportation, is that right? A. Yes. There are quite a number of swift water rapids on the Columbia between Pasco and Celilo. Squally Hook Eapids is pretty swift and it is difficult. You have to go between quite a 1541 number of bars and rapids to get up into the main rapid. The main rapids is straight and they are very strong and swift. It is from the head to the foot probably three-quarters of a mile. In that distance the river falls, I should judge it was about ten feet, or an eight foot fall there, eight or ten. I have run that fall probably two or three thousand times. I know the Umatilla Rapids, upper and lower. They are just about at the town of 5154 Umatilla, on the Columbia River, between Pasco and Celilo. In the whole distance of two and a half miles there is a fall there at the upper Umatilla of 17 feet. We measured it at the time I was making the soundings and surveys. I have run both ways. I have run up in high water and in low water both ways. I took through there a flat bottom light draught stern wheel steamboat. The last boat I was running there drew 29 inches light. The boats, the average boat for the Columbia River draws about 30 inches light, when loaded with a load she would draw from 4-1/2 to 6 feet, and even brought down as much as 7 feet. I assisted in the survey for the purpose of improving the chan- nel there at the Umatilla Rapids. Q. Is that where you said there was a current of twelve 5155 miles an hour? A. Yes, sir. As I understand, they have got out there, they show a current running at the gravel bar which is called the Lower Riffle, at nine miles an hour. The Yukon River from the mouth to the ramparts which is 800 miles up, is one continual mass of sand and down at the lower end it is pondry ; that is a kind of mossy growth that grows in bunches right out into the stream. It grows right out in the islands, innumer- able islands of ice. And the channels are, if a man knows his business — they are shifting considerably. After you get to the ramparts, then you have about 100 miles of rock, where its chan- nel is defined and remains there the same. Dawson is about 800 miles down, it is half way, the ramparts are. Then after you get above Fort Hamlin, which is about 50 or 60 miles above Ram- parts, at Ramparts it commences to spread out again and it is full of innumerable islands, and the channels are very narrow and crooked and it divides and going through you would have 1542 Gray, — C ross-Exa m, — Continued. to follow in one channel where it runs oft by the island, and 5156 you have got to run the channel that you can find there. It would be, places in extreme high water would be from 4 to 5 feet deep. In low water the same, because it goes out, the high water brings the gravel down and fills it up just as the river bed rises. I understand that the river at the widest part of the Yukon flats is 45 miles from water to water on one side, and that is not — all filled in between with a heavy growth of cotton wood and even fir and tamarac growing there, and all those innumerable channels go through there, so that is the only place that I hired a pilot when 1 went through because I did not think it would pay to waste time hunting for the channel. Q. And he got you into trouble at one place? A. Yes. The narrov/est channel, some places that would not be over 75 or 100 feet wide and four to six feet deep. When you get up to a little place called Fourth of July creek you have got a pretty fair chan- nel, it is reasonably permanent. The bed of it, the bed of the channel is of hard rocks and you have no trouble at all in 5157 finding the channel there. It is lined with glaciers going down on both sides of the river and there are moraines run- ning in on both sides above the river on the bank all the way up, and all the way we saw boulders sticking up out of the water, and had to work your way around between them. From Dawson up to White Horse it is continually the same, although there are a few places where, as at steamboat bar, — they have quite a number of islands that you have to go through. These islands are made very largely of glacier clay, cementing the boulders in place. They are made by the ice and thev have crowded up there and you can go back and come up there in the summer time where 5158 the water has washed out and you can see the ice with trees growing on top of them. Q. That is what we call historically fossil ice! A. Yes, sir, ice that has fossilized that is a great many years old. That goes up near Skagway. No, White Hjorse is the name of a rapids. It derives its name from the fact that it comes galloping like a white horse there. There are boulders and reefs in Ihe stream. The stream is lashed into ferment all the way down. There was 1543 a boat on Lake Marsh, wliicli crosses over to Caribou, where there have been boats running. Q. The boats were actually run on the rapids coming 5159 down? A. No steamboats were run or can run up there through the White Horse. There have been several taken down, several steamers, small ones. One was the Nora, was about 80 feet long and 10 feet beam, and the AVillie Irwin, about the same thing, and there was one other boat that was about 100 feet long, I forget her name. There have been I think four boats taken down over the rapids. They drew about two feet. The 80 5160 foot boat carried about 400 ton up stream, she had about a 4 foot draught. The 100 foot boat drew about the same amount. The AVhite Horse Rapids proper are about a mile long. I have never been on the Pellee. I have heard a boat went up there 60 miles, but how much farther she could have gone I do not know. I used this process of cordelling in the days of 5161 my early batteau ex])erience. In a batteau, we took the line in a batteau right up to the bank and the men jumped out and go alon^ that way and line up around those swift waters. And in warping, why you would take the skiff alongside and put your rope in it and carry the rope up above and then run the end back to the big boat and put it on the capstan and wind up there. And sometimes if the bank is good they just jump out and run along side the bank with the line, pass the line up on the bank and make it fast and shove her out and wind her up. That is the prac- tice in common use on the Snake and Clearwater and everywhere in the swift water streams, and it is still in common use on the Snake. AVherever a steamboat can go they put out a line, and then they handle it with the capstan. On the rapids above Lewis- ton there never has been a boat went up through there that 5162 was run without a line. Those boats that run on the Snake on their own power in still water when carrying the ordinary load of freight are about 12 mile boats. Coming down the stream sometimes on the Snake River we would go more than twice that fast. Well, I have considered that sometimes I went 35 miles an hour, but I wouldn’t swear to it. Q. When did you arrive in Chicago on this occasion. Captain? A. Saturday night at 10:05. 1544 Gray, — Cross-Exam. — Continued. Q. And yon went down to the Desplaines Elver yesterday? A. Yes, sir. 5163 Q. On Sunday? A. Yes, sir. Q. Who were with you? A. There was Mr. Logan, Mr. Munroe and Mr. Norton. AYe left Chicago Sunday afternoon and went down with this party between two and three o’clock. AYe got back here about half past eight, I think it was; somewhere close to that. I didn’t look at my watch. AYe come back by rail from Joliet and went by rail to Joliet. AYe used an automobile from there, made the trip from Joliet down to the site of this proposed dam and back again. 5164 Q. You came on here for the purpose of giving testimony in this case? I suppose so. I didn’t know what I was coming for until I got here. Q. You received a message requesting you to come on? A. Yes, sir. Q. And you came in pursuance of that message? A. Yes, sir, that came from the counsel for the defense. Re-direct Examination. Q. And you have traveled all over these rivers with Mr. Starr and noted their difficulty, and having that in mind, are you still of the opinion that the Desplaines Eiver is not safely navigable for boats? A. Yes, sir. Q. You were asked whether you referred to navigability as compared to the use of railroads, when you said the Desplaines Eiver was not in your opinion navigable. Did you mean that its navigation would not be commercially practicable in competi- tion with railroads, or that it was not a navigable stream? (Objected to as not proper re-direct; overruled.) 5165 A. It is most certainly not practicable in competition with railroads, and I don’t think it would be practicable in competi- tion with wagons. Counsel for Defendant. Q. Having had your mind refreshed with all the difficulties that you have gone over, it is still your opinion that you could not safely .take boats up and down? 1545 A. Yes, sir, that is my opinion. At Sqnally Hook in extreme low water in the rapids there is a depth of eight and ten feet. In the rapids proper there is a rock, right in the head, where the water is eight or ten feet deep, but at the lower end where it 5166 turns oft, there is only about four feet of water. The char- acter of the bed there is broken rock and gravel. IVell, it is boulders. Q. Now, the upper Umatilla, what is the depth on the rapids there? A. There is no place that you come over, except over a rock, except it has been blown out of the channel, where it is less than five feet at low water, but it is very crooked and an innumer- able number of those channels that are much shallower than the one that we followed. The one we followed at the extreme 5167 low water in our navigation had about five feet of water. The Yukon channel was probably 300 feet wide and about 5 feet deep, clear of boulders in the channel. The White Horse Bapids are between 400 and 500 feet in width. It is not shallow. When I speak of depth I mean depth in the clear. The channel in the Stikine at the place where the teees come over, from bank to bank, is about 400 feet, but the chan- 5168 nel probably where the boats could run, is not over 75 feet. Its depth was about 34 feet and its bed was small gravel. At Five Mile Bapids there was a dry reef. There is no place in the channel proper where there is less than eight feet. At Fish Hook Bapids there was 2 feet of water on the left and the deepest water was on the right, about 54 to 6 feet. The Long Crossing Bapids was the shoalest place in the Snake Biver and the depth of channeli there at lowest depth was thirty inches. 5169 Q. And three feet at the channel? A. Two feet and a half at dead low water. Q. Yes. Now, the Bescue Island you said was basalt reef. What were the depths at the Bescue Island Bapid? A. The reefs at low water protrude from the surface, but by going above, see- sawing down and going* up and see-sawing down again, we got through the channel, and there was probably six or eight feet of water. At False Palouse I never saw less than eight feet of water. 1546 Gray, — Re-direct Exam, — Continued. Q. At Palouse Rapids itself, what is the depth of the water? A. Unknown. Q. Very deep? A. Very deep. In very low water at the upper end of Palouse the boulders extend almost across, making the channel very swift, and they are only about five feet under water. Q. Five feet under water? A. Yes. Q, That is at lowest navigable water? A. That is at lowest navigable stream. Q. What is the depth at Monumental Rapids under similar conditions? A. About 30 inches, two feet and a half. Q. That is clear of boulders? A. Clear of gravel. Q. At the Texas Rapids, what is the depth at low water? 5170 A. Texas Rapids, there is quite a depth there, near the head. We have to go over rocks that are about five feet under water. Q. Now, Priest Rapids, what is the effect of high and medium stages of water upon Priest’s Rapids? A. It raises the water over a dry channel. It fills a dry channel on the Douglass County side and allows steamboats to pass up, around a canal, which is very swift and turbulent. Q. What depth of water do you have then? A. About five feet. I went down it and up it in a medium stage of water. It is navi- gable but it is only navigable at medium and high stage. At Jow water it pours right into a sluice which is prob- ably a hundred feet wide and the whole of the river goes right through that one sluice, so I couldn’t tell about the slope; it 5171 is impossible for a boat to climb. At the Cabinet Rapids there was more than ten feet of water. At Rock Island Rapids there is not an extreme amount of current there, and at the narrowest point I think the water was about 8 feet when I went through. But the water gets low, the channel that a steam- boat has to go through becomes almost dry and the rocks stick out of the water. The water percolates through between innumer- able channels that are not wide enough for a steamboat to go through. 1547 Q. How do you get the steamboat through! A. You don’t get through there in low water. I wasn’t - at the Chelan 5172 Eapids at extreme low water; when I was there, there was about 8 feet of water. Q. And on that trip you passed over the rapids near McLaugh- lin’s Falls; what was the depth of the water there! A. That I couldn’t say; we figured that there was about three feet and a half of water. Q. How much! A. About three and a half feet. Q. Hills’ Bar, you said the river was 600 feet wide, fifty or sixty feet between rocks, a channel of 50 or 60 feet; that was the depth of the river at Hill’s Bar! A. I was very young at that time and I don’t remember. Q. Have you any distinct recollection as to the character of that bar at all! A. I recollect having seen the rocks breaking in all directions and that we followed a certain channel. How deep it was, I don’t know. Q. You spoke of going in the ‘‘Norma.” Now, turning to the Snake Kiver, what year was it you went down with the Norma 5173 from Huntington to Lewiston! A. I believe it was in 1885. Q. Prior to that time the Government had done work on it, hadn’t it, between those points! A. Yes, sir; between Huntington and Seven Devils. Q. Let me read this to you: I am reading from page 3532 of Part 5, Report of Engineers for 1901. Counsel fok Complainant. I submit that Is not prosier re- direct. The Court. Yes, you brought out about Huntin.o’^-- mid that section, and he didn’t in his. Counsel for Complainant. Weil, what I mean is, is as to the use of extraneous documents as a method of elaborating the tes- timony of the witness is, I submit, not proper re-direct. The Court. I think it is proper under the circumstances. He may call his attention to Government Reports. Counsel for Defendant (Reading) : “In 1892, $20,000 and in 1894 $25,000 were, as before re- ferred to, appropriated for the improvement of the Snake from 1548 Gr ay, — Re-direct Exam. — Continued. Huntington bridge down to the Seven Devils mining district. Considerable work was done in freeing the river from ob- structions in this locality; considerable plant was collected, including drills, scows, tools, etc., and the work of removing ledge rock and boulders was carried on for several seasons. Only one steamer, the Norma, was ever built for navigating this section of the river, and she made but one trip and then the owners abandoned the idea of running. In 1896 all the 5174 Government plant in this portion of the river was sold and the river improvement abandoned.’^ Q. That is the trip that you made, is it not. Captain? A. Yes, sir, I brought the Norma down. Q. And that is a correct statement, that is the only trip you ever made? A. No, she made a trip down to Seven Devils and back. The CouKT. That is, from Huntington to Seven Devils? A. I went from Huntington to Seven Devils and back to Hunt- ington, and then she laid there until the next year and then I took her down. Q. To Lewiston? A. To Lewiston, yes, sir. Counsel foe Defendant. That was the complete history of her experience on that part of the river? A. Yes, sir. Re-cross Examination. 5175 They are making some progress with the development of the canal all the way around the Dalles, but the canal is not yet completed. It will be a number of years to come before that enterprise can be completed. But there is navigation below it and navigation above it. Q. You have a place there in the Columbia Kiver wheye there are boats below and boats above, but the natural barrier at The Dalles is so great that there isn’t any navigation through The Dalles themselves. A. Yes, sir. Q. Is there any place like that, that you think of now on the Snake where there is navigation above it and navigation below it, but not through it? A. No, sir; there is no such place 5176 as that. It is possible to take a steamboat through the Snake Kiver canon, but there are no boats above since the Norma 1549 was brouglit down; I don’t know but what there may be one. The Okanogon Lake is being navigated in British Columbia. The Okanogon Eiver is being repaired by the Government so that boats can be taken up there from the Columbia Eiver. They ex- pect to run there about three months in the year. 5177 Q. Eeading from this same report from which counsel read to you, a statement on the same page, ^^The Upper Columbia and Snake Eivers having formed one of the most important highways of travel in the region in early days before the railroads were completed. Congress as early as 1872 made appropriations for the improvement of the Columbia, and in' 1876 the Snake was added to the plan of improvement.” Do you accept the statement as correct that the Upper Colum- bia and Snake Eivers formed one of the most important highways of travel in the region in the early days before the railroads were completed? 5178 The Witness. What is the question? Counsel fok Complainant. I simply put the question to you if they did constitute the main highways of travel before the railways? A. They most certainly did, yes, sir. Q. Now that the railways have been developed on each side of it, the rivers do not constitute the main highway of travel? A. They do not, but we are making every effort to make them so.» Q. You are trying to hold on to them all that you can? A. Yes, sir, trying to develop them. Our State appropriated $125,000 for the improvement of the Snake last year. 5179 Re-re-direct Examination. Q. Assuming, Captain, the Columbia and Snake constituted the most important highways of travel in early days, it was true, was it not, in that new country where you were brought up that every stream that was capable of navigation at all, some way was found to navigate it? A. Yes, sir. Q. Did you ever know a stream that was capable of being navigated that was not navigated? A. I never did. 1550 Gray, — Re-re-direct Exam. — Continued. 5180 In connection with the cross-examination of Captain Gray, maps of Oregon and Washington, which were used in his testimony (marked June 16 Exhibit 1, Oregon, and 2, Washing- ton), were admitted in evidence. (Atlas, pages 3987 and 3988; Trans., pp. 6648-50; Abst., p. 1936.) The Government’s Engineer’s report of 1884, part 3, pages 2229 to 2243, were admitted in evidence, as follows : 5181 Improvement of the Upper Columbia and Snake Kivers, Oregon and Washington Territories. The plan of this improvement consists in rock removal at numerous rapids, to give channel depths, at low water, of 5-1 feet in the Columbia and 4f in the Snake. The original estimate of cost, made in 1877, of the work as now conducted, is $132,000. The total appropriation since the adopation of the present project is $96,000; the amount of expenditure thereon is $93,944.97. The estimate covers the reach of the rivers, 266 miles, from Celilo, Oreg., at the head of the Dalles obstructions on the Columbia, to Lewiston, Idaho, at the junc- tion of the Snake and Clearwater Eivers, and was made when the Upper Columbia navigation was confined to that route. Steamers have in late years, however, ascended the Snake above Lewiston for traffic, and also to Priest Eapids, on the Columbia, 73 miles above the mouth of the Snake. There is a fast growing demand for river transportation above Priest Eapids, as high as the Okinakane Valley. These rapids offer a serious obstacle to continuous navigation, but it is believed from reliable information that this obstruction, and certainly the higher reach, together of 150 miles, and as far as Foster Creek Eapids, are susceptible of open river improvement. 5182 An estimate from ^an examination in 1881, for improving the Snake above Lewiston to the mouth of the Brand Eonde, which appears to be the head of ordinary continuous navi- gation on the Snake, is $4,554. On the Columbia, between the Snake and Priest Eapids, there does not appear, from exam- ination and reports of pilots, to be any need of improvement; but I judge it is well to allow $100 per mile for removal of obstruction which may appear at extreme low stage. Above Priest Eapids, except at Cabinet and Eock Islands, where the channels are bad, the river is like the original condition of the route from Celilo to Lewiston, whose improvement is costing about $500 per mile. Applying this rate to the Poster Creek reach, and omitting the principal rapids named above, we have $67,500. Comparing those rapids to the minor cas- cades, where rock work is in progress, as of equal difficulty but of double extent, cost of required improvement of the 1551 former may be judged to be $400,000, or in the neigliborhood of $480,000 for the Foster Creek and Grrand Konde reaches. This proposed extended improvement, like tliat now in progress 5183 is rock removal from channels between stable banks, where navigation is impeded by boulders, reefs, and rock masses. Beyond Foster Creek there are 400 miles of navigable water on the main river, reaching north of the Canadian Pacific Bail road, and nearly half as much on the Kootenay broken by two places where canals or portages will be required. * * Operations During the Year. These consisted of an instrumental examination of the Snake River below Lewiston, and in contract work on the Snake at Five-Mile Rapid and at the reef next below Five- Mile. Work at Little Goose Island and Log Cabin Island Rapids is included in the contract, but has not been under- taken. Extended time of contract expiration is October 31, 1884. At Five-Mile Rapids, rock projections aggregating 22.02 cubic yards, were removed. Two of the rocks, designated as 4 and 5 on the progress map herewith, endangered descend- ing streams. Rocks 4 and 6 impeded ascending boats. Re- moval of these rocks has made channels of least depth and width of 5 and 100 feet respectively. xL difficulty remains in the strength of current, caused by an excessive rate of fall at the crest of the rapid. iV reduction of this slope can well be undertaken after other rapids are improved to afford as safe a passage as now afforded at Five-Mile. The removal 5184 of channel rocks complied with the existing project. Since the completion of the work, the steamer Spokane has brought down full loads, experiencing no difficulty in safely passmg the rapid, which was formerly the worst one between Riparia and Ainsworth. One of these trips was made at the lowest record stage. Difficulties in the passage of the rapid and over the reef below decreases as the river rises. At the reef below Five-Mile, the river has an unusual width. Near the left shore are two channels, throughout which were irregularly scattered boulders and rock points projecting from the shoal reef bottom. The extreme left channel was selected for improvement, as it afforded the greater general depth and presented the fewer obstructions. From it were removed 18 boulders and rock points, aggregating 26.76 cubic yards. Only those rocks which were 34 feet and less submerged were removed, and their removal was to a depth of 5 feet below low water. This gave a depth of water at no place less than 34 feet in a chan- nel nearly straight, and 100 feet wide where narrowest. There yet remains at the head of the channel a large area of reef 1552 Columbia and Snake Rivers, — Eng. Rep. 1884.— rock, submerged from 34 to 5 feet and presenting a very ir- regular surface. Lower down are a few boulders and pro- jecting points, the removal of which will be required when- 5185 ever a free depth of 5 feet below low water is called for. The passage of this shoal is now considered safe for all steam- ers on the river. ^ * 5187 Eepoet of Mr. Philip C. Eastwick, Assistant Engineer. United States Engineer Office, Portland, Oreg., February 26, 1884. Sir : In compliance with your instructions, I made a rapid examination of the rapids and other obstructions on Snake 5188 Eiver between Lewiston and its mouth. I left Lewiston on the 12th of December, in a bateau, accom- panied by three men, and reached Ainsworth, near the mouth of the river, on the 29th, making the time of eighteen days spent on the river. The weather during the latter part Af this period was very stormy and was accompanied by the strong up-stream winds which are common on the river dur- ing the winter. Finding it impossible to make satisfactory headway in the boat during the bad weather, I was detained in all four days thereby. Six days was consumed in examining Lower Log Cabin and Little Goose Eapids, the clearing of which is now under contract. This left but eight days devoted to the ex- amination of the other parts of the river. During the progress of the examination the fluctuation of the river, as ascertained from records kept at Eiparia and Ainsworth, was as follows : At Eiparia, from low water to 1.1 feet above low- water." ("In this report, low water at Eiparia is minus 8 inches on local gauge, and at i insworth is 328 feet above railroad datum. — C. F. P.) At Ainsworth from 'ow water, to five-tenths feet above low water. The designated low water is the lowest recorded water plane as ascertained from continuous records at Eiparia since April 1, 1882, and at Ainsworth since March 1, 1882. * * * 5189 Appended hereto is a descriptive list of all rapids, swifts, shoals, shipping points, &c., passed during the examination. The list embraces 51 places where rapids, swifts or shoals occur. The five principal rapids in the order of their occurrence are as follows: Texas Eapids, Palouse Eapid, Pine Three Eapid, Fish Hook Eapid, and Five Mile Eapid. These are all below I i 1553 Kiparia and are characterized by a great slope and strong currents through narrow rock-bound channels. Palouse and Five Mile Kapids, it is believed have been cleared of dangerous rocks to a depth at low water of at least 5 feet, so as to offer no insurmountable impediment to steam- ers drawing 4 feet of water. The strong current is the only remaining impediment, Init this can be easily overcome. Texas, Pine Tree, and Fisli Hook liapids, though much im- proved by the work that has been done upon them, are yet in a condition very dangerous to the safety of both ascending and descending steamers. The present channels through them would be considered safe and ample in width and depth were it not for the very strong- current induced by the excessive rate of fall. This current is 5190 now so strong at low -water that ascending steamers cannot stem it. These rapids must be further critically examined and the direction, velocity, and slope of the currents ascertained before a plan for the effective removal of the obstacles to navi- gation can be intelligently determined upon. It is probable that on one or more of these rapids the excessive fall will call for the use of locks to open them to navigation at extreme low water. The follovNung list comprises all the other ])laces where low- water navigation is so seriously impeded as to call for their early improvement : Below Kiparia, — Gore’s Dread, Long Crossing, Couch Is- land, Rapid, bar below Ford’s Island, Copeley’s Cut-off, Three Island Bend, Tiger-head Crossing, Ferine ’s Defeat, Ains- worth’s Bar, and bar at mouth of river. The passage of many of those ])laces is impeded by strong currents and is accompanied by risk of damage fo steamers. Intermediate between the rapids, shoals, &c., noted in the appended list are reaches of slack water, sometimes of con- siderable length, where the general depth is ample for low- water navigation, and where no disturbance of the water in- 5191 dicates the presence of obstructions. From the river cap- tains, however, I learn that the channel at many places is ob- structed by submerged boulders, requiring good pilotage to avoid. At none of these intermediate places, however, do I consider it necessary to make improvements until the chan- nel at the more dangerous rapids is cleared. The bed of the river on the rapids, shoals, and swifts, ex- cept where otherwise noted in the appended list, is of flat, water-worn cobble-stones mixed with a flner material and generally spotted over with boulders or projections of rock from concealed reefs below the cobble-stone. The cobble- stones are closely packed and make a very hard and firm bed, which the strongest currents of the river fail to move. It ap- pears quite probable that, in most cases, where such material 1554 Columbia and Snake Rivers, — Eng. Rep. 1884. — Con. forms the obstructing bars, if once removed by blasting and scraping, they will not speedily reform. To estimate the amount of work to be done at each of the places where obstructions are found involves the defining of the channel, which it is impossible to do without a survey, more or less complete, made with appliances specially adapted to make the examination in swift water. The surveys and measurements of the obstructions have heretofore been made at the time the improvements were in progress, with the use of the contractor’s scow securely moored at the obstructions. * * * 5193 Biparia is now, and has been since the completion of the railroad, the lower terminus of a steamboat route terminating above at Lewiston. This division of the river is more free 5194 from obstructions than the division below Biparia and is navigable at all times except when obstructed by ice, though at the lower stages only by the light draught steamers. The navigation of parts of the lower division of the river is possible at extreme low water, and that only by the lightest draught steamers, the ascent of the river being practically barred at Long Crossing. With the present railroad connec- tions navigation of the river will probably be continued under the two divisions named, the upper end of the lower division being at some point below the principal obstructing rapids. # * * 5195 Bespectfully submitted, Philip G. Eastwick, Assistant Engineer. Capt. Chas. F. Powelx., Corps of Engineers, U. S. A. Description of Bapids^ Shipping Points, Etc., on Snake Brh:r Below Lewiston, Idaho. * 2. Lewiston Bapids. — Opposite Lewiston and above the mouth of Clearwater. Th'e channel is straight, narrow and deep, with a strong current and no obstructions. The strong current extends over a length of about 2,000 feet of the river, with a fall of 4.2 feet. At the head of the rapid 2.6 feet of this fall occurs in a length of 600 feet (an average of 0.43 feet per 100 feet of length), including an excessively rapid cur- rent. Through this current steamers ascend at low water with 5196 the assistance of line and capstan. (See profile of water- surface on left shore.) At a stage of five-tenths feet above low water the intensity of the current is so far reduced that steamers can ascend without lining. The intensity of the current can be reduced by widening the channel at the place of greatest slope, thus lowering the crest 1555 and distributing the fall more uniformly over a greater length. 7. Eapid Above Whitens Ferry. — Channel slightly curved water deep. The total fall is 3.2 feet in a distance of about 5197 2,100 feet. At two points on the rapid the river is con- tracted to a width of from 300 feet to 350 feet, causing chutes where the water falls for short distances at a more rapid rate, and the current, which throughout the rapid is generally strong, is intensified. At the chutes the water is very turbulent. The strong cur- rent on this rapid, though retarding ascending steamers, does not necessitate a resort to lining.* Above the head of the rapid is a diagonal bar extending from the foot of island on the left, above, down to the exposed bar on the right below. This makes an extensive shoal, spotted with numerous small boulders, to avoid which steam- ers are obliged to follow a tortuous course. General depth on the shoal is 4 feet. (See profile and sketch.) No obstructions are found on the rapids. The only improve- ment required is the widening of the river at the chutes to dis- tribute the fall with greater uniformity over the length of the rapid. At the shoal above, the selection of a channel and its im- provement by the removal of the small boulders and deepen- ing would be beneficial, though not immediately necessary. * # * 5198 10. Steptoe Eapids. — A short, strong rapid in an abrupt curve of the river, with shoal above. The channel in the rapid is deep and otfers no material obstruction to navigation, ex- cept that of the current, which makes it necessary to line over ; only, however, at extreme low water. On the shoal above the rapids, the minimum depth is four feet with a number of small obstructing boulders. Deepening the channel through the shoal above the rapid, and the removal of the small obstructing boulders there will materially improve the rapid. This work however, is not im- mediately called for. Further examinations and surveys should be made with a view to ascertain the practicability of opening a straight channel to the left of the Middle Cobble- Stone Bar. (See accompanying sketch.) * * * 12. Little Pine Tree Eapids. — (See accompanying sketch and profile.) Strong current falling 6.1 feet in 2,500 feet length of channel, 4 feet of which fall occurs in a distance of 1,300 feet, where a very strong current, accompanied by rough water, is induced. Ascending steamers line over this at ex- treme low water. The channel is deep, except at the head, where it is obstructed by rock (probably boulders), but 2J 5199 feet submerged. It is narrow, though not objectionably so. 1556 Columhia and Snake Rivers — Eng. Rep, 1884.— except in the vicinity of the rocks above referred to, where some of the obstructions are situated in mid-channel. The removal of these rocks, and probably the widening of the channel at the projecting point on the left, will be necessary to insure a safe passage of steamers. * * * 5200 18. Shoal Below Bishop ^s Bae. — The minimum general depth on this shoal is 64 feet, but it is spotted over with many rock projections, probably large boulders), which compel steamers to pursue a crooked course. The removal of rock from a selected channel is all that is required to permanently improve this. * * ^ 21. Eapid Above Gkanite Point. — The channel is appar- ently nearly straight. It lias a minimum depth of 54 feet, but is much obstructed by boulders, which necessitates extraordi- nary care in piloting steamers through it. Passing steamers have frequently been damaged in passing here. The removal of the obstructing boulders through a s.elected channel is nec- essary to make the navigation safe. * * 5201 24. Uppek Log Cabin Eapids. — A long rapid opposite the head of Log Cabin Island, with strong and deep water and no obstructions. Ascending steamers are impeded by the strong current, which they, however, overcome without lining. * * * 25. Lowek Log Cabin Eapids. — (See accompanying sketch and profile.) The river at this point is divided into two water- ways at low water by a low cobble-stone bar. To the right of this bar lies the channel now used by steamers at low water. To the left of the bar, where the greatest width of river is found, are the middle and left channels. Eeferring to the accompanying sketch, the right channel A B is narrow, deep and rapid, and can be ascended by steamers above A and around the foot of Log Cabin Island at B, at low water only with assistance of line and capstan. The lower part of the channel at A, is much obstructed by ledge rock and boulders, 14 feet to 2 feet submerged, which in conjunction with the strength of the current and the narrowness of the channel makes the ascent of the rapids at this place difficult 5202 and dangerous. The removal of four or five rocks aggregat- ing but 8 to 10 cubic yards will free this channel from rock obstructions. A branch channel to the left of the lower part of the last named 'channel, and separated from it by a shoal middle ground, carries a depth of 4 feet at the head where it is shoal- est. A few boulders near C, but little submerged, obstruct this passage. The current in this channel, marked A, though of less slope than that marked C, is much stronger, being accelerated by the strong current in the upper part of the rapid at B, which, how- ever, has but little accelerating effect on the current at 0. 1557 Steamers both ascending and descending the right channel find it impossible to make the abrupt turns above B and between A and B without stopping to drift into position. The middle channel is at present impassable at low water, on account of the shoalness of the water and the presence of numerous small boulders scattered over the shoal above the submerged bar which projects from the foot of the exposed bar below Log Cabin Island. * * * The middle channel for the past few years has been gradually shoaling, and it is not now considered, navigable at low wmter. 5203 The left channel following close to the left shore is nearly straight and generally with an ample depth, and a width of 60 to 80 feet and more. It is, however, contracted at the two rapids indicated on the sketch by the rough rock detritus brought down from the bluffs on the bank. The strong current of the river has trailed these points down-stream, forming shoal and narrov/ bars of coarse mate- rial. * * The channel is further obstructed by rocks, principally small boulders above and below the rapid at E. Ow- ing to the risk of damage to steamers in passing the rocks, this channel is not used now at low water. At times, ascending steamers use part of this channel as far up as the foot of the rapid at E, and then drift over into the upper part of the mid- dle channel, through which they continue the ascent. This, however, is only practicable with the lightest draught steamers, and that probably not at the extreme low stage. Except on a small reach of the upper rapid where the shoal- est water is 6 feet deep, the left channel shows in its middle a general depth exceeding ten feet below and at least 8 feet above the shoal. 5204 By the removal of the rocks referred to and of the coarse material forming the trailing bars, the slope on the two rapids will be distributed over longer reaches, the rapid to a certain extent reduced, and the channel freed for the passage of steam- ers. * * * 5205 32. Atwood Island Rapid. — Straight chute with 7 to 8 miles current, and minimum depth of 7 feet. No obstructions. 33. Rapid Above Penawwa.— (See accompanying sketch.) Strong current, and general ample depth of 5 feet on the rapid. The channel is somewhat narrowed by boulders on the right and a shoal at the head of bar on the left. The removal of a few of the boulders to increase the width of the channel would be beneficial, though not at present necessary. Below the rapid is a short, crooked bend in the channel which can be materially straightened by the removal of a few boulders. * * * 5206 35. Rapid Below Penawawa. — (See accompanying sketch.) Current 6 to 7 miles per hour. Minimum depth, 5 feet. The 1558 Columbia and Snake Rivers, — Eng. Rep. 1884. — Co 7 i. channel is unobstructed but crooked. It can be somewhat straightened by the removal of a few boulders from the shoal at head of the island. No difficulty is experienced by passing steamers. * * * 37. Shoal Below Centkal Fekky. — (See accompanying sketch.) This shoal carries a minimum general depth of 6 feet in mid-channel, but the channel is obstructed by numerous boulders from 2 to 24 feet submerged, which can, however, be avoided by careful pilotage. Improvements by the removal of a few boulders would be desirable. 38. Shoal Ckossing and Swift Above Diamond Point. — The shoal and swift are separated by a short reach of deep and unobstructed slackwater. At the shoal crossing the current is moderate, and depth 34 to 4 feet. The channel here is some- what obstructed by small boulders. Ascending steamers slow down in passing. The channel through the shoal is 400 to 500 5207 feet long. An improvement by deepening the channel and by removing a number of small obstructing boulders will benefit the place, though by reason of the moderate current, which of- fers but littie resistance to ascending steamers, the removal of the boulders is all that is absolutely necessary. Through the swift below is a straight channel with ample depth of water. * * * 42. Big Goose Island Eapid. — (See accompanying sketch.) — Strong current in channel opposite Big Goose Island, on the rapid, the head of which is at the foot of the island the water is very turbulent, the channel is crooked and has a minimum depth of 54 feet. No difficulty is encountered by passing steam- ers. No obstructions have been discovered or reported. 43. Little Goose Island Rapids. (See accompanying sketch and profile.) — A swift of moderate current extending from head of Little Goose Island to a point about 1,800 to 5208 1,900 feet below the foot of the island. This though called a rapid by the river men is more properly designated by the term ^ swift. ’ At the head is a swift chute where the least depth of water is 5J feet and the current for a short distance is from 6 to 7 miles per hour. Below this chute and abreast of the island an ample gen- eral depth of 8 feet and more is found. Below the foot of the island the water shoals to a minimum depth of 54 feet at the crossing of a long bar which extends from the foot of the island on the left side of the channel down to the exposed bar on the right. The channel through this bar and the approaches to it from above and below is more or less obstructed by sub- merged boulders, the presence of many of which is not indi- cated by any disturbance of the water; they are, therefore, with difficulty avoided by passing steamers. 1559 Levels of tlie water surface' on the left shore shows the fall over a distance of 3,000 feet of the rapids to be as follows: Feet. From a point 1,150 feet above foot of island to a point 550 feet above foot of island, 600 feet, 0.3 From a point 550 feet above foot of island to foot of is- land, 500 feet, 0.8 From foot of island to foot of rapid, 1,850 feet, 1.6 Total in 3,000 feet, 2.7 The removal of the boulders referred to is all that is -re- 5209 quired to free the channel in the vicinity of the bar. Their position and contents can only be ascertained by a careful survey. * * * 45. Texas Eapid, a Shoet Distance Below Rtparia. — This rapid is 1^ miles long, and falls in that distance 14.45 feet, or at an average rate of 11.56 feet per mile. Mr. R. M. Tabor re- ports a fall, as ascertained in 1881, over a distance of 4,500 5210 feet of 12.72 feet, or at the rate of 14.92 feet per mile. The channel and water-ways, throughout the length of the rapid pass through very irregular rock reefs, extensive areas of which project above the surface of the wmter, or are but little submerged, and obstruct the channel or narrow it. The as- cent of this rapid cannot be made at low water by steamers without lining, and is then accompanied with much risk. The descent of the rapid is also to a considerable degree hazard- ous. It is probable that the strong current induced by the ex- cessive rate of fall, which on short reaches will exceed the maximum rate given above, will so impede the progress of as- cending steamers that it will be found necessary to resort to slack-water navigation. A determination of this question and the projection of a plan of improvement should be preceded by a more critical survey and examination than has hereto- fore been made. A map of this rapid was made by Mr. R. M. Tabor, assistant engineer, and published in the annual report of the chief of engineers for 1881. 46. Huntee/s Rapid.— a short distance above Grange City. This rapid is short, with turbulent water, and has a deep channel, but slightly crossed and flanked with submerged rock walls. Though not materially obstructed the removal of a large rock containing from 20 to 30 cubic yards, would en- tirely free and straighten the channel. * * * 5211 48. Palouse Rapid. — Since the improvements which have heretofore been made on this rapid the channel through it is considered perfectly safe. The channel is generally nar- row between low rock walls, and carries a strong current with numerous strong whirls. The fall through the narrow channel, as ascertained by Mr. Tabor, is 1.3 feet in 1,700 feet length, or at the rate of 4 feet per mile. * * * 1560 Columhia and Snake Rivers, — Eng. Rep. 1884. — Con. 51. Eapid Below Palouse. — short rapid with 5 to 6 mile current. Channel slightly crooked, with a least general depth of 6 feet. It is, however, shoaled by boulders, so that passing steamers have to carefully pick out a route, which, however, can be readily done. This rapid pres^ents no seri- ous obstacles, but the removal of a number of boulders would be beneficial. 52. Skiff Bar Eapid. — A short rough rapid, with slightly crooked channel. Depth generally 6 feet and more except 5212 where shoaled by boulders which deflect the channel, but do not entirely obstruct it. No material impediment, but the removal of boulders would be desirable in order to straighten the channel. 53. False Palouse Eapid. — Strong water and narrow and straight channel flanked with submerged rocks which make numerous whirls. No obstructions are apparent. The mini- mum depth is 5 1/2 feet above the rapid. This rapid has been improved by the Government, and the obstruction it is believed effectually removed. 54. Eapid Above GoreIs Dread. — A short, rough water rapid with whirls, and no apparent obstructions. Minimum depth 5 1/2 feet. 55. GoreIs Dread. — A shoal, rocky" place, with perhaps ample general depth, but the bottom is irregular, with many rock projections or boulders, which makes its navigation dif- ficult. The short stay here prevented the discernment of a proper channel. This shoal should he improved by carefully selecting a channel and freeing it of the obstructing rocks and boulders. 56. Monumental Eapid. — This rapid is short and has a fall of 1.7 feet from head to foot. It is characterized by a bar extending diagonally across the channel. At the deepest part of this bar passage is obstructed with projecting reef rock, which should be removed. Two other rocks, the one at the head of the rapid and the other at the foot, should be 5213 removed to afford an unobstructed passage through the rapid. It will probably be found necessary to lower the gravel bar in addition to removing the rocks noted, and also to remove a few smaller boulders. The work heretofore done by the Gov- ernment contractors on this rapid has not materially benefited it_ ^ ^ ^ 58. Eapid Below Wastuckna Ferry. — At the head is a diagonal gravel bar with a minimum depth of 44 feet. The water is dee]) elsewhere but the channel is somewhat ob- structed by a few projecting rocks near the foot of the rapid. The channel is straight except at the head where the diagonal l)ar is crossed. This rapid offers but slight impediment to navigation. 1561 59. Pine Tkee Eapid. — A strong, rocky rapid, a mile long, with a fall of 11 to 12 feet. Surveys of tliis rapid were made in 1877 and 1879, and maps published in the annual reports of those years. The work heretofore done, though quite extensive and im- portant in its results, has not sufficiently cleared the channel to make the passage by steamers safe. A number of rocks in the new channel at .the head, and also opposite the foot of the upper island, should be removed. * * * Xhe current 5214 is very strong through a narrow channel, and broken with strong whirls. The impediments to navigation appear to be due to the excessive current on parts of the rapid, which steamers have to avoid in ascending, thereby throwing them out of the channel heretofore improved. Further surveys and examinations are necessary to define the work of future improvement. 60. Kescue Island Rapid. (See accompanying sketch.) A short, rough rapid, with crooked channel, due to deflection by boulders. Minimum depth at head is 6 feet. No imme- diate improvement is required here, as it is considered fairly safe for passing steamers. This rapid is in the channel to the left of Rescue Island. The passage to the right of the island is entirely obstructed at its head by high exposed columnar basalt. 61. Long Crossing. — (See accompanying sketch.) A com- pacted cobble-stone bar, extending from the lower point of Rescue Island to the mainland on the left bank, a distance of about a half mile. The water falls over the bar as over a low dam, a large extent of the bar being subnier^-^i 1 foot 5215 and less. The deepest water on the bar is said to be 3 feet and in a very rapid current. The deepest channel is difficult to find. In crossing the bar I passed over in 2 feet of water only. At extreme low water ascending' steamers have to line over. This is probably the shoalest place in the channel of the river between Lewiston and its mouth. It is probable that fur- ther examinations mav show it to be practicable to open a channel on the right of Rescue Island, thus avoiding Long Crossing entirely. If this should not be found to be prac- ticable, a channel should be dredged through the bar, and its depth maintained by contracting the channel by wing-dams from the foot of Rescue Island on the right and the mainland on the left. A careful survey of this place should precede any work of improvement. 62. Couch Island Rapid. (See accompanying sketch.) A short, rough rapid over a cobble-stone bottom, with crooked channel and rock obstructions. At low water boats have to line up. This is accomplished with great difficulty and risk of damage from contact with the rocks. This rapid lies in d 1562 Columbia and Snake Rivers, — Eng. Rep. 1884. — Con. channel between Conch Island and the left shore. To the right of the island the fall in the channel is quite uniformly distrib- uted over the entire length of the island, which is about three- fourths of a mile long, the same fall being confined to the short length of the rapid in the left channel. The right channel 5216 has no rapid; it is more or less obstructed by boulders, and the passage through it difficult at low water. It is, however, used at extreme low water by the lightest-draught steamers navigating the river in preference to the left channel, the risk of damage being considered less. Both channels should be critically examined to determine which should he improved for permanent use at low water. Note: — The river from the head of Kescue Island to the foot of Couch Island, embracing Eescue and Couch Island Eapids and Long Crossing, should he examined together as a whole, with a view to ascertain the practicability of opening a channel to the right of the islands, thereby avoiding the ob- stacles presented by the two rapids named, and the crossing and securing a more uniform distribution of the fall. The length of the river on this reach is from 24 to 3 miles, and is shown on the accompanying sketch. * * 5217 66. Bar Below Ford^s Island, — A shoal gravel bar spotted with rocks, some of which are barely submerged. A strong current passes over this bar. The minimum depth in this channel is 5 feet, but the rocks obstruct and deflect the channel. The steamers Almota and Northwest have been damaged in passing this place. This shoal should be improved by removing rocks from a selected channel. 67. CopLEY^s Cut-Off. — A strong swift with shoal cobble- stone bar at head, having a depth of 4 feet for 100 feet length of channel and deep water above and below. At the foot of the swift the channel is again shoaled to a general depth of 6 feet width, however, many projecting rocks but little sub- merged, which crook the channel and materially impede navi- gation. Steamers must line over the bar at the head at low water. The channel should be improved by deepening the bar at the head and by clearing the rocks from a selected channel at the foot of the swift. 68. Shoal Above Anchor Canon. — Moderately strong cur- rent. Minimum depth of water in the channel is 5 feet for a short distance, increasing rapidly above and below. The chan- nel is apparently unobstructed, but is reported to be some- what impeded and crooked by boulders. No material impedi- ment, however, is encountered. The navigable channel is the middle one of three, separated by islands. ^ * 5218 70. Fish Hook Eapid. — This rapid is about II miles long, falling 124 feet in that distance over a rocky bottom and through a series of reefs, or at an average rate of 10 feet per 1563 mile. On shorter reaches the rate of all exceeds this rate, as the greater part of the fall is concentrated at the three princi- pal obstructing reefs. Work was done on this rapid in 1878 greatly improving its navigation. It will be necessary to re- move an additional number of rocks before the passage can be considered reasonably safe at low water. The ascent will always be difficult until the slope of the water at the chutes through the three principal reefs is re- duced by enlarging the channel through them. The general depth of water through the channel is ample. It would be advisable to make surveys of the low-water surface, in addi- tion to those surveys heretofore made, as a guide in defining the amount of work to be done in enlarging the water-ways through the obstructing reefs. 71. Theee Island Bend. — At this place there are three passages separated by two islands. The navigable channels are through the right and middle passages. The middle chan- 5219 nel is the one used by steamers except at extreme low water, when its ascent is impracticable by reason of the strong cur- rent and one small rock obstruction. A minimum depth of 4 feet at low water is reported. In this channel the fall is concentrated over a short distance, inducing the strong cur- rent which bars the passage of ascendiijof stenmers. Through the right channel the fall past the island is more uniformly distributed. On a bar at the head of this channel 3 feet depth was found, though it is probable that a deeper channel can be found. For much of the remainder of the dis^ tance past the island the channel shows a depth of 44 feet, with many projections and ledges, shoaling it to a less depth and impeding the channel. This is the only passage that can now be used at extreme low water, and that only by the light- est draught steamers. The passage is then always attended with risk of damage by contact with the shoal rock projections, the presence of which in the uniform current are not indicated by any dis- turbance of the surface of the water. Both the middle and right channels should be carefully ex- amined before determining upon the one to improve, 72. Bapid Above Haed Bock Point. — A short narrow chute between rock reefs. This carries ample depth of water and presents no apparent impediment to navigafion. ^ * 5220 75. Tigee Head Ceosstng. — A shoal diagonal gravel bar. with a minimum depth of at least 44 feet in the channel, with boulders and rock projections obstructing it and crooking the channel so as to make the passage dangerous at low water. The removal of rocks from a selected channel, and probably the deepening of the gravel bar, will be required here. 76. Five-Mile Bapid. — The improvement made at this rapid 1564 Columbia and Snake Rivers,— Eng. Rep. 1884. — Con. in the fall of 1883 has freed it from obstructions to both ascending and descending steamers. The strong current which characterizes this rapid can be reduced only by widening the water-way. This would involve extensive rock blasting, which is not at present necessary, as the passage of the rapid either way can be made at low water without risk or difficulty. 77. Shoal Below Five-Mile. — After the completion of the 5221 work done here in the fall of 1883, a straight channel up- ward of 80 feet wide and with a least depth of 3^ feet, was obtained. The river at tliis point is excessively v/ide and shoal. The bottom is rocky and very irregular. To increase the depth to 5 feet at low water will require the removal of 80 to 100 cubic yards from a ledge at the head of the shoal and the reduction of numerous small rock points and boulders scat- tered irregularly through the shoal below. These latter wilt aggregate from 20 to 30 cubic yards. 78. Ferine ^s Defeat. — A rock reef extending across the river just below the last-named shoal. An open channel with ample depth is found through this reef. At the chute through this reef the current is so strong that it requires great skill on the part of a pilot to overcome it. The enlargement of the gap will be necessary to reduce the current. Although the ascent of this rapid is difficult it is not accompanied with any risk of damage to the steamer, as the obstacle to naviga- tion is due entirely to the strong current. 79. Ainsworth Bar. — A half male above the Town of Ains- worth. This is a long diagonal bar, extending from an island on the right down to a partially submerged cobble-stone bar on the left. The channel through it has a minimum depth of but 3 feet for a length of 200 to 300 feet. . This bar is a seri- 5222 ous impediment to the navigation of the river. The Northern Pacific Eailroad Company’s transfer steamer Billings until recently has crossed this bar frequently each day in trans- ferring cars across the river. The frequent trips made caused an erosion on the bar deepening it to a certain ex- tent, but not sufficiently to afford a free passage at low water. After encountering many difficulties here the route was aban- doned and a better crossing effected at a point below. The improvement of this bar will require the dredging of a chan- nel through it, the depth of which will have to be maintained by contracting the river by wing-dams from the island on the right and from the bar on the left. * * * 5227 Counsel for Defendant. T now present to the court cer- tified copies of the tax records of Grundy County, Illinois, showing payment of taxes on all parts of Section 25, Township 34, North, Eange 8, in that county, from the year 1862 down to and including the year 1907. These tax records are certified by 1565 the County Court and County Clerk of Grundy County, and also certified by the County Treasurer, and they show that the north fraction of the southeast quarter and the south fraction of the southeast quarter and the north fraction of the northwest quarter of said Section 25 were duly listed for taxes during those years and under those descriptions, and that taxes were paid on those portions of the section under those descriptions during those years. In order to avoid cuinhering the record with these bulky certified copies, I ask counsel whether lie will examine them and see if he agrees that they show the facts as I have stated them. Counsel for Complainant. I suppose they do, though I have not seen them. 5228 Counsel for defendant then offered these certified copies in evidence. (Objected to as incompetent, irrelevant and immaterial. Overruled.) Said certified copies were thereupon admitted in evidence marked ^‘Defendant’s Exhibit Tax Records.” (Atlas, p. 3989; Trans., p. 6652; Abst., p. 1936.) 5229 Counsel for Defendant. I now present to the court a copy of a letter written by Governor Ford of Illinois under date of January 3, 1844, addressed to the Honorable elohn Davis and duly certified to be a copy by the Secretary of State of Illinois, who certified that it is a true copy of a letter written by Governor Thomas Ford on January 3, 1844, to Honorable John Davis, the original of which copy is now on file and a mat- ter of record in this office. This letter was written by Governor Ford after the passage of the Act of 1843, creating the Canal Trustees, written to John Davis, and contains his views as to the meaning of the Act and the intent and purpose of the state in making the trust for the security of all the old creditors as well as new subscribers to the loan. (Objected to as immaterial, irrelevant and incompetent.) The Court. Objection overruled. Said certified copy of the letter referred to was thereupon marked “Defendant’s Exhibit, First Letter Governor Ford,” and is as follows: 1566 5230 ^ ^Defendant's Exhibit, First Letter Gov. Ford. State of Illinois, Department of State, James A. Rose Secretary of State. To All Whom These Present Shall Come, Greeting: I, James A. Rose, Secretary of State of the State of Illi- nois, do hereby certify that the following and hereto attached is a true copy of a copy of a letter written by (Governor) Thomas Ford on January 3, 1844, to Hon. John Davis, the original of which copy is now on file and a matter of record in this office. In testimony whereof, I hereto set my hand and cause to be affixed the great Seal of State. Done at the City of Springfield this 21st day of April, A. D. 1908. (Signed) James A. Rose, (seal) Secretary of State. (Executive Letters — 4^ — 1840. 5 — Gov.) (Page) 155. Chicago, III. January 3, 1844. Hon. John Davis, Sir. Your favor of the 31st Ultimo has been duly received. The 5231 topics embraced in it have been subjects of careful con- sideration with me for some time past; and I now proceed to answer your inquiries according to the best of my knowl- edge and belief. Your letter calls on me for information on the following points. 1st. What is the title of the State of the Canal property? 2. Is it in any respect incumbered by conveyances, pledges or liens? Does any antecedent Act of the Legislature vest any title or right in the non subscribing bondholders? What is the meaning and design of the 21st Section of the Act of 1843? 3. Does the variance between the proposed contract and tliat specified by the Legislature raise any doubt as to the power of the Governor to enter into it? Can he mortgage the property for a less sum than $1,600,000; or for a sum which obviously cannot complete the work? Can he waive or release the provisions of the Act working a forfeiture of the contract if the Canal is not completed within three years? 4. Has the Governor any power to convey or to contract except what is conferred by the 21st Section of the Act? If he has not, does that section taken in connection with the 5232 residue of the Act authorize him to grant in the manner proposed or in any other terms a preference to subscribers in the payment of their bonds, or in the payment of their 1567 supposed loan I Is such a preference consistent with the proviso which reserves to all bondholders the rights which have been conferred upon them? 5. What is the effect of the grant contained in the 10th Section of the Act of 18431 Will it vest any title in such trustees as may be chosen? Will entering into a contract in pursuance of the other provisions of the Act make this operative so as to transfer by legislative power the pro^perty in the terms and by force of the grant there made? Lasting, suppose the deed of trust to be drawn upon the understanding that all matters of enquiry shall issue favor- ably and it shall turn out that when the subscribers to the loan come to enter into a contract with the State as is pro- vided in the Act there should be a deficiency in the subscrip- tion, by the neglect or refusal of stockholders to subscribe, how is that dehciency to be made up? And how would the balance thus necessary to make up $1,600,000 be supplied? In reply, I have the honor to state that the title of the State of Illinois to the Canal lands is secured by a legis- lative grant contained in an Act of Congress to be found in 5233 Story’s collection of laws, page 2062. The selection and approval under that Act by the proper officer of the U. S. Government is in possession of the State, a copy of which can be furnished you, if you think it necessary. The lands proposed to be conveyed in trust by the Act of 1843, have never heretofore been conveyed or sold; nor have they been pledged otherwise than by the several Acts of the General Assembly, under the authority of which loans have been obtained for the Canal. These Acts all pledge the faith and credit of the State; the Canal and canal lands and other property for the payment of the principal sums borrowed and interest thereon. That at the same time pro- vide for a progressive sale of the lands ; and the Act of 1839, which authorized a loan of four million of dollars, expressly authorizes a sale of the lands by the authorities of the State and appropriates the avails to the payment of interest, and to the construction of the Canal. All the laws of the State on the subject of the Canal will be furnished you, by which you will see the extent to which those lands have been pledged for antecedent loans. I hope, however, to satisfy you in the course of my answer that the pledges heretofore made, by no means precludes the State from making a new pledge of the same lands for an additional sum of money; or from giving a priority of pay- ment to those who make it. 5234 The pledge of the canal property for former loans, does not amount to a legislative , 2 :rant of a legal vested interest. It is not like a mortgage, which in point of law conveys the legal estate; nor does such a pledge vest any power in the 1568 Defendant’s Ex. — First Letter Gov. Ford. — Continued. creditor to take iDOSsession of the property; nor did it carry with it any assurance of a judicial remedy in case of the violation of the pledge. But on the contrary, it supposes that the Legislature of the State, is to continue to have the control and disposal of the property, and are to adopt meas- ures which in their wisdom and discretion, will make it most available for the payment of the debt as well as to complete the canal. The State does not merely hold the land in trust for the benefit of the creditors. The pledge cannot receive that construction, because there is no legal remedy against the State to compel an execution of the trust. It is merely honorary; and binding upon the public faith and conscience. It amounts only to a declaration and assurance to the public creditor that the property pledged shall be managed in the best manner for the benefit of bondholders, according to such just and enlightened discretion as sovereign states must necessarily be understood to reserve, where they undertake the management of a business in their sovereign capacity. According to this view, the right of the public creditor may 5235 be said to be perfect in one respect; that is, he has a right morally, to exact justice, and good faith. But in another re- spect his right is imperfect; inasmuch as he has no judicial remedy; inasmuch as the Legislature must be the agent to dispose of the property for his benefit; and inasmuch as tlie mode of disposal and application must necessarilv depend upon its views of policy and justice. Such, I suppose to be the right of a bondholder in respect of this property: Wherefore, if it can be shown that the disposition of it, proposed by the Canal law of 1843, is the most wise, prudent and just one, to all the public creditors, the non-subscribing as well as the subscribing bondholders, it will be all that will be necessary, legally and moralhy to sustain the power of the Legislature to make it. Certainly the Legislature did not think that they were violating the rights of non-subscribing bondholders, by postponing them in participating in the benefits of the trust. Many millions of dollars had alreadv been expended on the Canal. It was yet incomplete. It yielded no revenue. The state was mil- lions in debt on account of other improvements which yielded nothing. It was well known that a sale of the lands and Canal in their present condition, would yield but little to- wards satisfying any of our creditors. The State was too poor; too destitute of both property and money, to pay the entire amount of interest by taxation; and there appeared to be no other resource. The only hope of the 5236 public creditor was in a wise and judicious management of this property, wherebv its value would be increased; and in the future growth and prosperity of a new country. Under these circumstances, it was confidently believed that 1569 although those lands were, without the completion of the Canal, inadequate to pay any considerable portion of the debt, yet they might be made available to put the Canal in operation ; that the Canal in its turn would revive confidence ; turn the tide of emigration and wealth from abroad again into the State ; increase the ability of the people to pay taxes ; and itself yield a revenue sufficient to pay a very large portion of the interest on the public debt; and we believed that the residue of the interest could then be provided for by taxation, if necessary. This was our financial policy; and such, was the necessity which, in our opinion, made it the most wise, just and prudent, which we could at that time adopt. It does not, then, appear that we infringe the rights of a non-subscribing bondholder by giving a priority in payment to such of our creditors as will advance an additional sum of money, which is to be used to bring about results so aus- picious to the interests of all. It is understood that in England, where the same common law prevails which is in force in Illinois, it is the law, in case 5237 of railroad, bridge, and other such like corporations, that the last loan to the corporation, is first to be paid, notwith- standing previous pledges for antecedent loans. Also, mari- time loans of money on the pledge of a foreign ship, when the ship had been pledged for more than one loan, the last one is to be first paid. The master in a foreign port may borrow money to repair, furnish, and victual his ship, and pledge the ship itself in payment. In the course of a long and unfortunate voyage it may become necessary to borrow successive sums of money and to give a new pledge of the ship on each occasion. In all such cases the last advance is to be first paid out of the proceeds of the ship. Because if it were otherwise, the antecedent creditor by the loss of the ship might be wholly deprived of his security. The principle of law applicable to this kind of lending would seem to apply with great force to this last advance of money requested to complete the Canal. The Canal itself is a nonentity in value without the last finish. So is the water power. Town lots which without the Canal would re- main village lots, with it would be city lots. The land it is true is now of some value. But all well informed persons agree that it would be quadrupled in value at least by the completion of the Canal. The whole property is now like a ship half sunk and daily going to destruction, for want of 5238 a little money to raise and repair it, and put it into the trim of a tall gallant vessel. That the -land is now of some value does not seem to dis- tinguish the case from that of the ship. And the only dif- ference appears to be, that in the case of the vessel, the 1570 Defendant’s Ex. — First Letter Gov. Ford. — Continued. owners are not bound, but in our case, the faith of the State is pledged as well as this particular property. If I have already insisted upon the inability of the State to meet its engagements, I have not done so for the purpose of coercing a new advance of money; but, simply, truly and candidly for the sole and only purpose of placing the additional security of a i^ledge of the public faith in its true light, and to avoid such inferences as might possibly be drawn from it in case it had been given by a solvent State. This view of the case, convinces me that none of the cred- itors can strictly claim a priority of payment in consequence of former pledges; and without some additional legislation, such as the Act of 1843, they must share pari passu, in the proceeds of the property. If the rights of the creditor consist simply in a claim upon the public faith, which ought to be sacredj and if the pledge of property is merely honorary, conveying no vested inter- est in the land, I cannot imagine any reason why the debts of the State thus secured are different from other debts which are binding upon the public honor and conscience. Nor 5239 can I imagine why the Legislature cannot give a preference to one creditor over another in the payment of his debt. It is a well known principle of law, that a debtor in failing cir- cumstances may give such a preference; and that he may conve}^ his property in trust giving a priority to some of his creditors. This may always be done by the principles of the common law, vdiere the bankrupt laws of the country do not require an equal distribution of the effects of the debtor, and where the deed of trust is not upon condition of a discharge from the debt and reserves no property or benefit to the debtor himself. In our case we do not propose to be discharged from the debt; nor have we reserved any property or benefit to our- selves for the purpose of coercing submission on the part of the creditor. Whatever reservation there may be, is a mere resulting trust after the pa^mient of the debt. The Legislature have expressly authorized such a disposi- tion of the Cnnal property; and I cannot doubt, but that if any of the bondholders had accepted the terms of the grant contained in the Act of 1843, they would have enjoyed an assured estate in the property granted. It seems however that the bondholders do not propose to accept the precise terms of the law. They offer to enter into a contract with the Governor in a manner somewhat variant from the law, 5240 but supposed to be authorized by the 21st section of that Act. As to my power to enter into such a contract, it be- comes me now to state my opinion. It seems to me clear, that I have at least full power to convey all the benefits and advantages proposed by the law; 1571 and to bind the State in all particulars whatever in which it would have been bound, if the terms of the law had been ac- cepted. It appears to be clear to my mind that the design of the 21st section was to enlarge the power of the Governor, beyond the terms of the law, rather than to restrain it to a more limited sphere. That this section enlarges the power of the Governor, and authorizes him to enter a contract at variance with the law, is evident from the language of the section itself. And this construction is fortified by the known facts of the case which called for such a provision. The facts of the case are. That the State was possessed of property which was pledged in honor for the payment of a debt. We were willing to surrender it to our creditors for that purpose, and the only question was how it could be made most available; and upon what terms and conditions our creditors would prefer to receive it in part payment of their debt. The whole law was, therefore considered as a mere proposal to the bondholders. We had no information from them as to what terms they would be most likely to accept. 5241 In this uncertainty .as to what they would do, we endeavored to make our proposal as reasonable and just and as likely to succeed as we could. We legislated according to the best lights which we possessed at the time. But for fear we might not hit the views of our creditors ; or in the language of the 21st section we provide that ‘If in consequence of any de- fect, omission or objection to the foregoing Act, the said bondholders or other persons shall neglect or refuse to sub- scribe for the said loan, in that case the Governor is hereby authorized to negotiate and enter into contract with the said bondholders or other persons in ])ursuance of the general principles of this Act. Provided that he shall make no fur- ther pledge of the faith or credit of the State, for any ad- vance of money, but shall be limited to pledging the Canal and Canal property therefor. And provided further that in any negotiation to be made under the provisions of this Act for the purpose of carrying them into effect, nothing shall be done which shall in anywise interfere with the rights now secured to the holders of Canal bonds.’ This is the 21st section, by which it clearly appears that a variance from the terms of the law was contemplated. If the creditors ob- jected on account of any defect or omission in the law, such a defect or omission was to be supplied by contract; and in like manner anything which the bondholders could reasonably object to in the terms of the law, was to be provided for by contract. The power given to the Governor to contract is 5242 very general and sweeping and is only limited in three par- ticulars. The contract is to be according to the general prin- ciples of the Act. That is, I make no doubt, the power to contract is to be ^exercised for the purpose of attaining the 1572 Defendant’s Ex. — First Letter Gov. Ford. — Continued. same great object which the Legislature had in view to ac- complish, and in a manner agreeing with the cardinal fea- tures of the law. This limitation is expressed in a very in- definite manner, from which I cannot hesitate to believe if the Governor exercises the power conferred upon him rea- sonably and discreetly to obtain the desired object, that the State could make no objection. The next limitation is, that the Governor shall not pledge the faith or credit of the State; which of itself is a lucid commentary by the Legislature upon their own meaning; and upon the extent of power which they thought might be exer- cised by the Governor without this limitation. It seems that they feared that the power conferred in the first part of the section might enable the Governor to pledge the faith and credit of the State unless restrained by express enactments. The other limitation is, as to the rights of non-subscrib- ing bondholders. These are not to be affected by any con- tract of the Governor. I have already shown, as I flatter myself, the nature of the rights of a bondholder. 5243 If I have already succeeded in establishing the positions. That the pledge in former laws in favor of non-subscribing bondholder is merely honorary; that it conveyed no legal inter- est ; that it only amounted to a declaration and assurance bind- ing in honor and conscience; that the State in its sovereign ca- pacity is to be the agent in disposing of the pledge for the benefit of creditors; that in the execution of this agency, the State is bound simply by the principles of justice, and a wise discretion; that the canal law of 1843, makes the most wise and just disposition of the property for the benefit of all creditors; that this law expressly authorizes a priority in favor of subscribing bondholders, and that the 21st section enlarges the power of the Governor beyond the terms of the law. I cannot conceive why this -proviso should be construed to inhibit the Governor from giving such a preference by contract, as is already given by the law, if the terms of it had been accepted. The section in which this proviso is con- tained authorizes the Governor to contract with persons who are not bondholders and give them a preference in the pay- ment of money advance. From all which I infer that this proviso simply means, that the Governor in executing the power conferred upon him to contract, is to regard the rights of non-subscribing bondholders in the same beneficent and equitable light in which they are provided for by the other portions of the Act. It certainly could pot have been the 5244 meaning of the Legislature, that this proviso should defeat all the provisions of the law. And yet this must necessarily be understood if we suppose that the non-subscribing bond- holders have rights which are inconsistent with a new pledge in favor of other, and certainly more meritorious, creditors. 1573 The 10th section of the Canal law of 1843, expressly conveys the canal property in trust for specified purposes; and the 13th section makes it take effect, upon the election and appoint- ment of trustees: So that the principles of the common law requiring an estate to be vested in praesenti, are wholly im applicable. I propose to convey the same property in trust which is offered to be conveyed by the 10th section. The 21st section authorizes me to do so ; and the 13th section of course would vest the title and possession upon the appointment of trustees. This seems to l3e clear, from the fact that I am to incorporate the general principles of the law (of which this is one) into the contract. I am well satisfied that if the Legislature had the power to pass the law, I have power to contract in pursuance of its provisions ; and such a contract being made, that the property would be vested in trustees by force of legislative power. It is my opinion that I can mortgage the property for less than $1,600,000 in the manner proposed by the bondholders; 5245 that is they are to share pari passu with others who may hereafter contribute to the completion of the canal. I do not understand that the property is to be conveyed to them for their sole use and benefit; or that they could cause it to be sold before the canal shall be completed, to pay their first advance. Those who are to make future advances could not share pari passu in the benefit of the pledge if the property could be sold to pay the first. The 21st section does not limit the sum to be borrowed other- wise than by requiring the power to be exercised in pursu- ance of the general principles of the Act; which Act however specifies the sum of $1,600,000 as necessary to complete the Canal. I however place my power to enter into the contract in this respect upon this ground: there is nothing in the Act which requires me to borrow the whole amount of $1,600,000 of the same persons, I think I may contract with one set of persons for a part of the money and with another set for the residue. My power over the subject does not cease until I have completed the whole negotiation. It is similar in this respect to the power of the Governor to negotiate former loans. By one Act, the Governor was authorized to negotiate a loan of four millions of dollars. ' Bonds were sold at many differ- ent times to many different individuals, each one containing a pledge of’ the lands &c. No one of these sales nor all of them 5246 together produced a sum of money sufficient to complete the Canal. But I presume there would be no question as to the legality of such loans as were effected under that law. I do not doubt but that I have the power in pursuance of the general principles of the Act to convey all the property 1574 Defendant’s Ex. — First Letter Gov. Ford. — Continued. mentioned in the 10th section to trustees, to be applied accord- ing to the provisions of the Canal law. I do not question either, my power to release the forfeiture of the contract if the Canal shall not be completed within three years. My reasons for these opinions have already been given. They are founded upon the construction which I think ought to be given to the 21st section. My conviction is that this section enlarges the power of the Governor, instead of re- straining it. That it authorizes me to depart from the terms of the ]aw by supplying defects and omissions, and waiving objections to the law itself; that I am restrained in this par- ticular, only so far as I am required to contract in pursuance of the general principles of the Act. If I understand the proposition of the bondholders, they do not wish to forfeit whatever they may have advanced, in case of failure to pay the residue of their subscriptions; and they desire that the property may still continue to be held in trust for their bene- fit, so far as they may make advances, as well as for the benefit of others who may advance the residue of the money to make 5247 the Canal. In this sense I cannot perceive that the proposed contract would be variant from the general principles of the law. The object of the law in providing for a reversion of the lands to the State, in case the Canal shall not be completed in three years, was, as I well know myself, to secure the ulti- mate control of the State over the work, in case of the long continued and unreasonable delinquency of the subscribers. It was thought that it would be improvident legislation to convey those lands to trustees for the benefit of subscribers who might take their own time, and perhaps never fulfill their part of the engagement. In the meantime the State author- ities would be prevented from making other arrangements for prosecuting the work on the Canal. To avoid this evil and this only, it was provided, that if the subscribers should fail to make the Canal in three years the property should revert to the State. I think that I could not lawfully enter into any contract which would tie up the hands of the Legislature in this manner. But I make no question that I can release a forfeiture of money paid, and also provide that the trust shall continue as a security for its reimbursement together with other sums which may be afterwards advanced. In this manner the ultimate control of the Legislature would be secured over the work, at the same time securing to the subscribers whatever money they may advance. The mere 5248 forfeiture of the money paid and of the security for its re- payment, I cannot believe was cardinal object of the Legis- lature to accomplish. There would be no justice in it, and 1575 I solemnly believe that an agreement providing against such a forfeiture would be so just and equitable in itself ; and would accord so well with a discreet and prudent exercise of power under the 21st section, that no objection could be made to it, either in law or equity, and that it might well be con- sidered as one of those objections to the law which might be supplied by contract. When I first saw the proposal of the bondholders T had some doubt as to the power of the Governor to enter into the contract. But that doubt originated in the uncertain mode of expression used. Since I have seen Messrs. Oakley and liyan, and heard from them the meaning intended, I have had no doubt whatever. Your remaining question is this: Suppose there should be a deficiency in the subscription, by the neglect or refusal of the Stockholders to subscribe, how is that deficiency to be made up! And how would the balance thus necessary to make up the $1,600,000 be supplied! I have already stated that I consider the contract to borrow a portion of the money to be good as a part execution of the power vested in me to negotiate a loan of $1,600,000. The sum thus obtained, would put about fifty miles of the Canal 5249 into operation; and I cannot conceive that if the contract should be good and valid as a part execution of the power con- ferred upon me at the time it is entered into, that the validity of the Act could be affected by a failure to negotiate the resi- due of the loan, if such be the case. But I do not apprehend danger of failure. It might perhaps be improper for me to anticipate at this time what the future policy of the State would be in case of a failure to negotiate a part of the whole of this loan. But I should expect with confidence, that further inducements might be provided to obtain all the money which may be necessary to complete the Canal ; and if not, the sum now to be advanced would not be expended in vain. I am very Respectfully, Your obedient servant, Thomas Foed.” 5250 (Further objected to on the grounds that there is no proof of the circumstances under which those letters were written, and there is no proof that it falls within the duties of the Gov- ernor to construe the law so as to make it an official act, and of course, that the absence of the original is not accounted for. Overruled.) Counsel foe Defendant. We offer it under the section of the statute of 1843 which expressly provides that if, for any reason, the Act as passed cannot be carried out, the Governor himself is 1576 authorized to make any amendment he sees fit so long as he does not pledge the credit of the State. Counsel for defendant also offered in evidence a certified copy of another letter written by Governor Ford to Honorable John Davis and David Leavitt under date of March 10, 1845. This also is duly certified by the Secretary of State as part of the history of the negotiation between the Governor and subscribers to the new loan. (The same objection. The same ruling.) Said certified copy was thereupon admitted in evidence, marked ‘‘Defendant’s Exhibit, Second Letter of Governor Ford,” and is as follows : (Here follows Certificate of the Secretary of State in the same form.) 5251 “(Executive Letters — 4 — 1840 — 5 — Gov.) (Page) 175 Springfield, March 10, 1845. Gentlemen : I have received your favor of the 2nd inst. and in accord- ance with our understanding when you were here, I send you a blank appointment for the election of trustees. I have al- ready transmitted to you a copy of the contract, together with 5252 Gov. Davis’ draft. I have also transmitted another copy to Genl. Fry and Mr. Matteson to be signed at Chicago and then to be forwarded to Mr. Leavitt. In my letter accompanying the copy of the contract transmitted to Mr. Leavitt, I promise to forward to him and to Governor Davis a blank appointment for the election of trustees, to be used according to your dis- cretion, as soon as you become satisfied that there is but little doubt that the contract will be signed and the law accepted by the subscribers. Your letter of the 2nd inst. would seem to vest a larger discretion in me; and authorizes me if I see proper to com- plete the papers immediately and risk the approval of the European subscribers. If you think proper to take this course, you have my hearty concurrence. If the matter should fail contrary to all expectation, I can only subject myself to some censure, by being over sanguine of success, which I am ready to incur inasmuch as if it succeeds the work will commence so much the earlier on the canal this season. You will see that I have already signed the contract, on my part, and it now rests with the Atlantic subscribers and the gentlemen who hold the proxies of the foreign subscribers, whether they 1577 will at once complete the arrangement, relying upon its rati- fication by the subscribers abroad. I will in due time provide a form for a registry of bonds &c., and appoint persons in Chicago, New York and London, 5253 with whom such registry can be made. I am with the highest respect. Your obedient servant, Thomas Ford. Grov. John Davis, David Leavitt, Esq., New York.’’ 5254 Counsel for defendant read in evidence from a printed copy of the report of the Canal Commissioners of the State of Illinois under date December 1, 1894, following portion of the report, beginning on page 5, as follows: ‘‘The following table will show the names of parties to whom we have granted leases of portions of the reserved strip within the fiscal year, some of whom were by our orders compelled to enter into lease, while others appeared at the General Office and made voluntary application in accordance with the established rules of the Board, viz: 1578 Canal Com. Hep. 1894 . — Continued. c3 c3 s ^ Q) P-i H ^ a <11 qj 111 oj > Cl 03 1-5 J 03 C ^ ^ ^ I J 03 03 C o o o o o o o o o LO >o o o >-0 o 03 2 ^ ^ ^ O O H H CO - 03 h-5 03 U :z; c3 ;3 a" 05 <3J 03 q; 03 05 t» : M “ O O <;z; 1579 5256 (The same objection. The same ruling.) Counsel for Defendant. I also present the printed report of the Canal Commissioners of the State of Illinois to the Gov- ernor, made under date of December 1, 1895, and I offer from that report a portion of it beginning on page 5 and ending on page 6, reading as follows: ^‘One of the most important acts of our Board for the past year was the disposing, to Chicago parties, of the old spoilbank stone lying on both sides of the canal, from Summit to Lock- port, at advantageous rates for the State. This stone has been lying on the banks of the canal for nearly fifty years and was considered practically worthless. Now that we have closed contracts for the sale of it, we deem it worthy of notice at this time, for various reasons: First: Its sale will net the State several thousand dollars. Second: Its removal will cause the employment of many boatmen and laborers, besides, placing boats that are now idle in continuous service. 5257 Third: It will be the means of opening new territory of the reserved 90 feet strip for rental, and thereby largely in- crease the incoihe realized from that source.’’ (Objection to this extract from the report of 1895, as irrele- vant, and for the other reasons. Objection overruled.) Counsel for Defendant. I also present a printed report of the Canal Commissioners to the Governnor, made under date of De- cember 1, 1898, and I offer in evidence that part of the report on page 12, being appendix to the report entitled ''D, Leases of ninety- foot strip and lots,” and I offer that from this particular report because in this report wherever the ninety-foot strip has been leased it has been stated, or at least it has been stated in a number of cases that it is the ninety-foot strip. (The same objection overruled.) 5258 Said portion of the appendix referred to is as follows : 1580 Extract, — Canal Com. Rep. 1898. — Continued. Leases of ^‘Ninety-Foot’’ Stkip AND Lots. Date No, of Eeceipt Names of Lessee Location Amount July 22 97 Illinois Steel Co. 90 foot strip along Joliet Works $500.00 August 12 111 E. F. Pulsifer Eent of 90- foot strip, Utica 50.00 Sept. 15 122 John Liker Eent of 90- foot strip, west of Joliet 5.00 Counsel for defendant also presented the printed report of the Canal Commissioners made to the Governor under date of Decem- ber 1, 1896, and offered in evidence from that report the tabular statement appearing on pages 8 and 9, entitled ^^C,” leases of 90 feet strip and lots. (Objection, as incompetent, irrelevant, immaterial and not the best evidence.) Said tabulation was thereupon admitted in evidence and is as follows : 5259 ‘‘C”— LEASES OF ‘‘90-FEET STRIP’’ AND LOTS. 1581 O O !z; ^ o o o o o o o o o LO o >0 I> r-H LO o o iNH a . bJO o o tc o ooooooooooooo ooooooooooooo ooooooooooooo ooooooooooooo o &4i PQ H-3 ci oj c3 Ci O Oh Ph q'S'S'S ^ OQ M CO ^ o "o "o O o o o o o o 0 O o o O s 5: 0) - O UO o >o o «^o O (MO LO --H O T-H o o o O (M (M CO O o ^ OOOO(MO00Ol0l0O‘Cl 0 O'— 1‘00'-< r- lOOJiMOCOOJ ,-H ^ r-t ,-1 CO !=: o S (M I I 7 I 00 00 CO (A CO CO ^ WJ CO 1 CO CO I I 1 (M CO O 03 CO CO - oT r-H ro _ t- CM CO CO ^ "O 4^ 2 .2 .2 V ° .2 ^ .2 .2 ^ H-5 H-5 O '■+^ H-3 00 o;oo_^ ooLO oJ 2 CO ^ r-H CO 01 01 (M rH ,-H r-H CO r-H T-l I I I I I I Cb GO I 00 00 CO CO CO CO GO CO CO I I I I CO I I ''f O k-O 01 I (M IM '-l.(M CO CO CO CO CO 000000000 o o o o o o a, o a a o 0000000 .pHOJco^r^coC^ccco^ccxcoccaj o "o o O'' o' tn s— H bJCCb Cb -O Ci -tJ H -5 O hJ H -5 O O hC o o 0 0^00 'V'V cc'V'V o o -p: o o ex Cb +J Cl Cb a_OH_0-_^_^3_^ C 'iZ 'C, 'EH 'EH 'EH 'EH hJ H-5 H-> Oi cc cc HJ H -5 -hJ +J 0000000 0000000 Cb Cb Cb Cb Cb Cb Cb f2 ,5 o 03 ^ 0!> S 0 0 0 0 d 0 c3 Si 0 0 0 _o 0*0 > 0 b£ hO 0 0 0 Si m 0 0 o3 Sh '.S H-= m 0 0 0 ( 0 P d 0 2 bcm Ph W '0 Oh Si 0 d > d (0 Oh 0 C3 0 IB 0 hO 0 •4-P «3 0 0 .2 << "0 tc 0 0 0 d o o o 2 rPl C rO Ph o: t tH c3 o o o3 o . O o p-l c " -2 C5 O , ib£b;^ p o HH CC' Ch Q c5 r hO C3 ” CO COOoOCbO'-iCO^C'lCO^LObDl:^ T-H,-H^rH(MCM(M(MCOCOCOCOCOCO I 00 CO l:^ 'f O 00 Cb -— I O ^ l:^ 00 C5b r-ti— ICM (Mt-HCMCMCM rHCMi-H-— IT^T-Ir-ICM OOCbOt^OOCbO^OlCOO^LO COCO'^'^'^'^L.OiOLOiOL.OLO CbCbOGOCOCOCOOCOOOOOCb CM (M CO rH ^ rH ,-H rvi rsi ex c 2 s Q &!■ c3 C c3 ■LEASES OF “90-FEET STRIP” AND LOTS. (Continued.) 1582 Extract, — Canal Com. Rep. IS^Q.—Contimied. O.^ . < 1 ^ OOOOLCOOOOOOOOOOOOOOOOO 0000 (N 000000 0 0 C' 000 C 00 1 C 0 0 ‘ 0 ‘OOOOC^OOOOOi-OOOOOOLOiOt^to LO LO O rH o --H Ci to LO X- O >0 o '-I O !M ,-1 ^ •r I I -CiCOCO c^ I I C 3 LO o CO Ol o C.O bJj (V ^ -OIX X ^ oq X I I -' >1 >-l f-l ~ 51 +J ^ -i M CO 03 03 c3 t- I CO LO X ^ ?q X 0 o 01 01 mm .^m itH o o &C 01 o X +33 +3 h-3 S.3 o o P -^r o o O O P o o o 00 'g o o Cl Cl bJCJP Cl Cl ^^xp s T-^ rH ..01 I I I (M Cl 1 2 CO CO CO CO 1 I I xA; O O 't I IC X (N X Cl —I ^ ^ ^ ^ c 2 . 2 . 2 . 2. 2 ^ tj ’-Ps zj 0 01 O 01 01 01 01 01 ,x m X m m ^ P "S P P P P P P o CCCflPlcOMMCOtEcacCpQ +i +3 0000 0000 I X 1 X X I X - ^,oq I Cl X cvi •xp: _ - ^ p p p Xl ,c o P ^2 s 01 03 (V ^ mm 01 •'-' ^ P. P. 0 o o o o o o Cl Cl P O C o P O O o o 'V ''V ' ?-( o o o fcJCCl o 0 o fcJD a .. 01 ’p 0000 ° Cl Cl ■§ 01 ' c5 01 c O oi pp p p O Pi o O 01 op: M -H yd o p:;z; o . t^p< o . o <; ^p ' P . ai 2=^.2 pq 2 p" rt qC o gp 00 ^ Pi p ^ p ^ o.. t— I X X ^ 00.2 ^ M 0) 01 01 o 'P b bJO f:; P P pP'^O'P PQ o g .'S n K O 01 CB p C -;:3 01 -p c Pc^> o o 'gp 2 Tjd o p oo m p . go ' ^ r ' X H 'Mxi-ooh-x^X’-'Oir^'-ioqxc OOOPCCPCcOt^t'^XXXCKPlO’-- lOXClO'M‘-OlOOrHrHr-Jr-(r- ,-H T-( r-( X T-l r-( X X X X X C oq X < X 00 oq X ( oq X Lo >c CO Cl 00 01 »o O X X o o ^ X r-l X X 01 %* -p 2 p o 2 p 01 m o O Total Amount 1583 5260 Counsel for defendant read in evidence the report of the United States Chief Engineer, 1901, Part 5, statements in regard to the Snake Kiver, from pages 3529 to 3512, as follows: ‘‘Description : — The Snake Eiver is a long and very crooked mountain stream flowing from upward of 900 miles down the western slope of the Rocky Mountains. It is extremely irregular in its direction of flow, width, depth, and slope, as well as in its banks and bed. Portions of it are inclosed in steep, rocky canyons where the great slope causes extreme velocities, portions of it include waterfalls and cascades of great beauty, but only in its lower portions are reaches found where navigation is practicable. It rises in the mountains in the southern part of Yellowstone Park, flows southwest through the southeastern part of Idaho until within about 60 miles of the Great Salt Lake of Utah, and then flows west- ward through southern Idaho. It then turns north and forms for 200 miles the boundary between the States of Idaho and Oregon. At Lewiston, Idaho, where it receives the waters of the Clearwater River, it again flows westward and finally empties into the Columbia River in the State of Washington near the town of Ainsworth. It is subject each summer to very high rises, varying from 18 to 26 feet, due to melting of snow in the mountains, and remains in a state of flood for 5261 several months, usually commencing early in May and last- ing until September. There is also usually an autumn rise in November varying from 4 to 10 feet, due to rains in the areas drained. The low water discharge of the Snake at its mouth in the Columbia River is reported to be 26,000 cubic feet per second. (See Annual Report of the Chief of Engi- neers for 1889, p. 2583.) The basin drained by the Snake River and its branches com- prises the greater part of southern Idaho, large parts of east- ern Oregon and southern Washington, and parts of Utah, Wyoming and Nevada. This area is estimated to be 104,000 square miles. (See House Doc. No. 4II, Fifty-fifth Congress, Second Session.) Geologists state that the greater part of all this area has in former geological periods been subject to successive over- flows of volcanic lava that now form the basaltic cliffs and mountains found in general over all this region. The rivei^ banks are, therefore, rocky and not easily washed, so that the Snake is not what may be properly termed a sediment- bearing stream. Considerable sand and gravel are carried, how^ever, due mainly to the disintegration and wearing away of the rock and boulders forming its banks and bottom. The bottom also is mainly rock and boulders except where the sand and gravel have collected, due to natural causes, thus forming bars and shoals. In its upper portions it is said to be a typical 1584 Snake River,- — TJ. S. Eng. Rep. 1901. — Continued, 5262 mountain stream, having a rocky bed and swift currents with many picturesque falls and cascades. Above Huntington, Oreg., it does not appear that any special attempt at naviga- tion has ever been made, probably because impracticable. Be- low Huntington, which is the western terminus of the Oregon Short Line Kailroad, and the eastern terminus of the rail lines of the Oregon Kailroad and Navigation Company, there is a reach of about 50 miles where an effort was once made at navigation many years ago, in the endeavor to afford water transportation from the Seven Devils mining regions to Hunt- ington. The Government spent a considerable sum of money from 1891 to 1896 in improving Snake River in the vicinity of Hunt- ington. This was of no avail, however, as the only boat ever built for this section of the river, the Norma, gave up trying to run, after one trip, on account of the lack of paying business and the difficulties of navigation. Lower down from near Bal- lards Landing, just below Pine Creek, and as far down as the mouth of the Salmon River, the Snake flows in a deep, narrow canyon of basaltic rock for about 75 miles, where the slope of the river surface, sharp bends, and high irregular banks cause high velocities and cross currents and offer a serious obstruc- tion to navigation that will always be formidable and dan- gerous, if not wholly unnavigable. Prom the mouth of the 5263 Salmon River down to the mouth of the Grande Ronde River the difficulties of navigation are somewhat less serious, - but still probably render the river impossible for practicable navi- gation. The mouth of the Grande Ronde River may be taken as the present head of practicable high water navigation in the Snake. The lower 139 miles, however, from the mouth at Ainsworth, Wash., up as far as Lewiston, is the only part that has been successfully navigated at lower stages. In former days, before the construction of the railroads, this lower section of the river, in connection with the Columbia River, formed the only quick and safe means of communication with Portland, Oreg., and the Pacific coast, where were located the commercial centers. Light-draft river boats plied from Portland as early as 1858 up the Willamette and Columbia Rivers 45 miles to the obstruction at ^The Cascades,’ where a portage railway 6 miles long, on the Washington shore, passed the freight and passengers around these obstructions. For about 45 miles more steamers were operated in what was then called the middle Columbia River, or up to the town of The Dalles, Oreg., and there a second portage road,. 13 miles long, on the Oregon shore, enabled freight and passengers to pass the obstructions between The Dalles and Celilo, Oreg., and be transferred to steamers on the ‘upper river,’ above Celilo. These latter steamers at most favorable stages, and 1585 usually for more than half of each y^ar, could ascend from 5264 Celilo up the Columbia to the mouth of the Snake, and up the Snake to Lewiston, which latter place thus became at an early date a center of distribution for a large outlying fertile region. The opening of the locks at ‘The Cascades’ in 1896, by the Government enabled steamboats to pass around one of the worst obstructions in the Columbia liiver, leaving the ob- structions in the 12 miles between The Dalles and Celilo the only impassable ones to be overcome artificially in reaching Lewiston by water from Portland. The' completion of the Portland-Spokane line of the Ore- gon Kailroad and Navigation Company’s liailroad, in 1887, along and adjacent to the Columbia and Snake Livers as far as Piparia, Wash., robbed those two waterways of much of their old-time importance, so that all river navigation and portages on the Columbia above The Dalles and on the Snake were practically abandoned in 1888, except on the 73 miles of the Snake between liiparia. Wash., and Lewiston, Idaho. Between these two points regular navigation has been main- tained by the steamers of the Oregon Bail road and Navi- gation Company up to the present time, and occasional trips are also made by boats belonging to the Northern Pacific Kail- way Company and others. Occasional trips on the upper Snake have been made as far as the Grande Bonde Biver, about 25 miles above Lewiston, when the stage of water was 5265 favorable, but these trips are now so few and unimportant that the condition already existing, especially at boating stages, is believed to be sufficient for all the present needs of com-* merce. The proposed improvement by the Government of the Columbia Biver between The Dalles and Celilo will, if under- taken and finished, likely revive some of the old-time impor- tance of the Snake Biver, especially from Lewiston down to its mouth, providing, as it would, an all-water transportation route during at least a portion of each year from Lewiston to Portland. A survey of the lower 66 miles of the Snake Biver from Kiparia down to the mouth, made in 1899 under direction of Capt. Harry Taylor, Corps of Engineers (report of survey printed in House Doc.. No. 411, Fifty-fifth Congress, second session), renders a further survey of this portion unnecessary at this time, so that the portion from Kiparia to Lewiston being the only portion now regularly used by vessels, the subject of this survey and report, is the only remaining part believed to be worthy of consideration at the present time in connection with the improvement of the river for navigation. In the portion from Lewiston to Kiparia (73.5 miles), re- cently surveyed, the average width is approximately, 750 feet, the discharge 22,000 feet per second, the total fall 196.6 feet, and the slope an average of 2.67 feet per mile. 1586 Snake River, — U. S. Eng. Rep. 1901. — Continued. 5266 The low-water depth varies from 2^ feet to 25 feet, with an average channel depth of about 8 feet, and the velocity from 1.3 to 8.8 miles per hour. The banks are about 1,500 feet high and usually slope to the water’s edge. In a few places, however, there are found narrow and fertile ‘bottoms,’ limited in area, usually lying at the mouths of small creeks. These ‘bottoms’ are the only cultivated lands immediately adjacent to the river, but these when irrigated are very fertile and yield luxuriantly a fine quality of fruit, berries, etc., considerable quantities of which are shipped out annually. The river banks slope back to a height of many hundred of feet, and the bunch grass found thereon offers a sparse but fairly good grazing for sheep and cattle. On high plateaus, some miles back from the river, are the richly productive wheat fields of eastern Washington and Oregon. Much of the wheat, now amounting to many millions of bushels annually, raised in the Camas, and Clearwater basins, Palouse and Big Bend countries, and the Wallawalla and Wallowa regions now passes down the Snake and Columbia Eiver Valleys by rail. For a further description of the Snake River, including description of the rapids and bars and the work done in past years, at- tention is respectfully invited to Annual Reports of Chief of Engineers for 1877, page 1037 ; for 1889, page 2583, and for 1891, page 3218. 5267 Previous Improvement. — The Upper Columbia and Snake Rivers having formed one of the most important highways of travel in the region in early days before the railroads were completed. Congress, as early as 1872 made appropriations for the improvement of the Columbia, and in 1876 the Snake was added to the plan of improvement. From that time up the present a total of $288,500 has been appropriated foV both rivers’, of which, as near as can be learned from the rec- ords, $117,850.57 haxe been applied to the Snake River froih Lewiston down to its mouth, mainly below Riparia. The orig- inal project was to secure a depth of 4^ feet at low water from the mouth up to Lewiston. The greater part of this improve- ment was made below Riparia, as the dangers and difficulties met with by steamboats were greatest there. The method of improvement consisted mainly in blasting out obstructing boulders, removing dangerous ledges, scraping sand and gravel bars, and the construction of dikes to concentrate the river flow in selected channels. This work on the lower Snake below Riparia was stopped in 1888, as the steamboats had abandoned that section upon completion of the railways par- alleling it, and the expenditures since then being small have all been devoted to improving the portion in actual use be- tween Riparia and Lewiston. In 1892 $20,000 and in 1894 $25,000 were, as before re- 1587 5268 ferred to, appropriated for the improvement of the Snake and Huntington bridge down to the Seven Devils mining dis- trict. Considerable work was done in freeing the river from obstructions in this locality. Considerable plant was col- lected, including drill scows, tools, etc., and the work of re- moving ledge rock and boulders was carried on for several seasons. Only one steamer, the Norma, was ever built for navigating this section of river, and she made bui one trip, and then the owners abandoned the idea of running. In 1896 all the Government plant in this portion of the river was sold and the river improvement abandoned. Before the improvement of the Lower Snake was com- menced there were many shoal places where tliere was not over 2 feet depth at low water. At many rapids the channel besides being shoal, was rocky and thickly studded with out- standing boulders, and was very crooked and intricate. The current was very swift at ])laces, and the early attempts at navigation were accordingly attended with frequent delays, mucli risk, and occasional loss. The effect of the improve- ment has been to remove ledge rocks from many places be- low Riparia, partially straightening the channel, and freeing the river of many obstructing points. Many boulders have been blasted, and sand and gravel bars scraped, both above and below Riparia. At several places considerable benefit 5269 has been obtained by the construction of dikes, closing un- desirable channels and directing the river flow into selected places to occasion scour and increase the depths. Above Riparia the present condition meets fairly well the present demands of navigation at all stages except at and near extreme low water. Extreme low water is seldom reached and only occasionlly are boats prevented from using the river for this reason, and then for only short periods. Much de- lay is experienced near low-water stages, however, by having to Gine’ the boats over bars and by having to run with only partial loads. Previous Examinations and Surveys. — An examination of the Upper Columbia and Snake Rivers was made in 1866 by Lieut, (now Lieut. Col.) W. H. Hener, Corps of En- gineers, and an estimate of cost of improvement made (See Annual Report, Chief of Engineers, 1866, Part IV, p. 330), amounting to $166,686, with $6,000 annually for dredging. In 1877 a further examination, with estimate of cost of improve- ment, amounting to $132,000, was made by Map (now Brig. Gen.) John M. Wilson, Corps of Engineers. No continuous sur- vey of the Columbia and Snake Rivers has ever been made up to the present day. The plans of improvement proposed in these projects were for the benefit of the special places found 1588 Snake River, — U. S. Eng. Rep. 1901. — Continued. most troublesome by steamboats, and only special, limited sur- veys of the localities to be improved were made. 5270 In 1897 a survey from Eiparia to the mouth was made under direction of Capt. Harry Taylor, Corps of Engineers, and a project and estimate of cost submitted under date of January 27, 1898 (House Hoc. No. 411, Fifty-fifth Congress, second session). The project of improvement as stated in this report was for securing at low water at least navigable depth of 5 feet everywhere from Eiparia down to the mouth, a distance of 66 miles. The cost was estimated at $165,000, with $3,000 every two years for maintenance. Present Survey. — The present survey was commenced July 28, 1900, and the field work was completed September 24, -1900. The party, numbering 15, was under charge of Mr. Prank Gilliam and was composed of a transit party and a level party, with the necessary boatmen, cook, and laborers. The party, using four batteaux, commenced at Lewiston and drifted downstream from time to time with the current when it was necessary to change camp sites. A line of levels, checked by a duplicate set of readings, was carried through the entire distance, the zero being the level of mean low water at the sea, assuming as correct the corresponding elevation of low water at Lewiston (708.6) as observed by the Oregon Eailroad and Navigation Company. Low-water level was obtained from the zero of the gauge at Lewiston on the Oregon Eailroad and Navigation Coin- 5271 pany’s waterhouse and from that of the gauge on the cent- ral pier of the drawspan of the Eiparia Eailway bridge. These gauges were read daily at noon during the survey, and were found to indicate fairly well the corresponding stages of water at the two places. These gauges were put in place by the railway companies and have been read for many years by them. The zeros give the best information available of the level of extreme low water. 1589 > o Sh to hC^ d ^ C •FH > O d o H-> d d2 .22 EE ^ g d m o cO OJ Qj d o p d Sd Td d . d to ;-< «} GJ dd ^ H o ^Fd « .S O) > d bC dd d d T 3 d d m 'Td ^ d d *1 P o O cO 2 d “ a: a; c t: tc 2 O fO d o .s _ ^h‘ O j-( . o OJ ^ OJ CO a 2 d a oj d >■ d > g d £ S ^ ^ O (N|M a d . d (B ;h M o S 2 2 ^ o PQ • CO o o o o 05 00 00 to o to 00 to to o Tf^ CO 00 to (0> 00 o CO 00 o 05 to 00 00 lO (M o 1-H ’-' to CO (M o 05 o o o 05 o to CO 00 t'- a to a t^ 05 00 to 05 rt< CO (N to CO CO <05 E* 1-H E— . CO EE P2 i-H CO^ a CO lO CO t- (N ^ 1-H CO 00 1- rH CO a O: Cl 05 >0 l-H O a (M 05 GO CO to CO 00 CO to 00 O o o o o o 05 <05 00 00 00 t- CO a CO to l> t^ CO a CO CO a CO CO CO CO o CO CD lO o t-h GO O 1-H 1-H o a to CO CO o (M 1-H CO 1-H (N O (M o o lo a 05 Cd 05 CO Hfl Hf CO c o o 1-H 'CT' O 1-H 1-H CO CO 'ct^ 'Cf^ <05 05 <05 rH CO CO CO 1-H rH 1-H 1-H t-H a d !h d o .IS gw -2 d FIz;' o ^ _rl cd _ js a _ o d oOO O U( .2 o d da d o a 'a d Pd d da ^ ^ F O fa |Ka bb^H aaWa S^w£ o o d O ' eS bX) M 0.1 0 pa C.) .2 OJ .2 m 0 'P 0 0 -f 13 13 .s c3 •P PJ P bC p CP m t-i CP ^ 2^ 0 lit CD Pi 13 ci P 'P 0 p 0) ^ 0 n > P > p "S d > > p 2 M IS 0 2 ^ c3 Ui CO o3 cc 0 0 P 5 0 0 p A 4.5 CO LP >p PI* CO 3.6 ^ A ^ 05 0 0 r-M 0 LP PI 0 PI r-^ Lp Cl CO CD rd 0 1-0 PI LP 0 CO CO 2 0 Oi CO CO p t— 1 00 1-H PI LP 00 PI 1 — 1 I — 1 ' — — ' pH f-> • P hP X H-1 Pd . . 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X . -f-i 5 O £p b b . g O 2 b • - ^X •X'®£Xc 3 -, _ -X ' 4 ^ 4 X ^ >■ ' ^ +X ' ^ xO (■■»< ' X 4 X c 3 q r‘^X^r° X^r° I tb ° S ° ^ X 'I « ® X Xx X Xx X d^X b — XXXX b ^xX b ^ o o-iv^ o pd X X x^ oQ 159: Snake River, — U. S. Eng. Rep. 1901. — Continued. ci > 5 o 1 ^ Q ^ m ■2 a; 0 2 0 H G +P O} IP 0 !P 5 ^ G 23 03 pp u 2 g 2 h-5 53 'g ^ 0 2 -§:S *24+^ 0 pp G « ^•0 per M d d p^ :S| G -4-i OT 1| pp > 243 a> ^ Q 0 4_» G d G ^Ph 'm .2 S5 G ^ r- G PS 24 X pp s ^ 2 +-> bC^ 2 0 'T3 m ■S-.-2 .2 ^ ■g,| « ^ -O} W 03 feJO Lh ^ ^ <1 ii 5 > H S Ph r— ‘ o -O H a£ ^ O ■*■' 5:5 G O P^ ^ 5 ? Ph S s' P > o 2 'm <1 of .5 2 hP -3 ^ G 2 2^:3 o _s a; c3 ^ s o_ C4|M ^ 0 ^ 0 0 0 0 0 ■d’ 00 CO to I— 1 LO t^ 00 to to CO CO L-0 to CO 0 CO 0 0 CO CO CO >-0 d< (M d to 05 di d4 1-H (M CO to d (M lO 'd LC 0 00 CO 00 to 0 0 to CO CO d^ C30 05 05 0 CO CO 0 (N l'- GO CO to 00 CO 05 »-o CO d4 CO -H CO to (M lO i2 to (M (M (M 1> 05 CO r-4 oa r-l to 0 0 d 0 CO 00 05 00 Cb 05 0 CO d' -d d -d d to 00 00 05 05 05 4-1 r-H 05 CO L-O IJO LO 0 0 CD CO CO CO CO CO CO CO CO CO CO CO l> Id m >1 2 03 a 2 o O 2 O o3 p:? 2 o bD G G 23 -tJ -Q 2 G t> ‘bC -2 - 2'^ - ° ^ ° 2 ! ■2! '2h 2 PP 2 PP 'H ‘2^ o3 P3| 23 2 o3 '^03n'^2o*-'2o 2 gq.. a^oS^^o Ph ph ^ w p-t §:W ph Q os o ■ ■ : !'2- na 2 - 2 .. O IS s s § g cS »g° ^•''2 -2 J O -2 _ 020rt’,20n-,':ao O^ 0 - 2 ^ 0 - 2 ^ o (M ■ 3 S § PP o3 _a s-< o3 o G O) o 2^Wp^ 0^ a^-i bC O C 2 PP^ d d 'JP ‘P d d 2 - 2 . SS G C3 23 d is o CO 5r: G •'t*- T3 G QJ Sm >J M G a > o 2-P3 03 ^ 2 I °pp ! bfiO hP o -4-3 .2 ‘o 24 -t-3 2 G 2 G G 2 G 2 2 o G G 23 d o >« ^23 O I— I ^ 2*' 23 G M ^ 'S -4J ^ X G a^hP o ^ d G 2 ^4-4 ’J^ G 23 ^ 2 G ^ ji ■S| 03 03 53 G G f-i 4 ^ > G 03 -32 1593 5274 DETAILED DESCRIPTION OF SHOAL RAPIDS AND PROMINENT POINTS IN SNAKE RIVER FROM LEWISTON^ IDAHO, TO RIP ARIA, WASH. Beginning of the survey is 0.25 miles above Oregon Rail- road and Navigation Company’s warehouse at Lewiston, Idaho. Lewiston, a city of about 5,000 inhabitants, is situated at the confluence of the Snake and Clearwater Rivers, on the right bank of former and left bank of latter. 1. Lewiston Rapids: — This rapid is opposite Lewiston. It has a length of 0.57 of a mile and a fall of 4.1 feet, or at the rate of 7.19 feet per mile. The river just above the rapid has a low-water width of about 900 feet^ narrowing down, with an almost square-shouldered gravel bar on the right, to a width of 230 feet. The gravel bar has a height of about 5 feet above low water, and width of about 900 feet. On the left bank of the river is a gravel bluff about 40 feet high. This sudden narrowing of the river, together with a shoal place extending across the river just above the head of the rapids, causes a current of 7.93 miles per hour. The least depth of water is 7 feet. No improvement is deemed neces- sary at this place, as the only difficulty experienced now is caused by the strong current. The Clearwater River empties into the Snake from the 5275 northeast, 0.60 miles below Lewiston. It has a low- water width of about 350 feet and a depth of about 7 feet. It is the only stream of any importance emptying into the Snake River between Lewiston and Riparia. 2. Riffle No 1 (1.71 miles below Lewiston). — It is 0.20 of a mile in length and has a fall of 15 feet, or at the rate of 7.5 feet per mile, and at least depth of water of 10 feet. No special impediment To navigation was found here and no im- provement is necessary. 3. Dead March (3.2 miles between Lewiston). — It has a length of 0.76 of a mile and a fall of 7.3 feet, or at the rate of 9.3 feet per mile. The least depth of water found was 4 feet. The river, which above the rapid is about 900 feet wide, is here divided by an island, which throws the main body of water into a channel on the south side about 450 feet wide. This sudden narrowing produces a current of 6 miles per hour. The other channel to the north of the island is about 150 feet wide, and 1.2 feet deep and is blocked by shoals and boulders and not available for navigation at low stages. No special difficulty is experienced here now, but to secure a 5-foot channel it will be necessary to dredge near the lower end. 4. Dry Gulch Shoal. — This shoal is just above Dry Gulch Rapid and 4.45 miles below Lewiston. The river at this point makes a turn to the left and a tongue-shaped point 1594 Snake River, — U. 8. Eng, Rep. 19^1.— Continued. 5276 reaches out from the left bank terminating in a shoal which extends across the river. The deepest water found on this shoal was 2.5 feet. It is proposed to dredge a channel 5 feet deep and 120 feet wide through this shoal. 5. Dry Gulch Eapid (4.66 miles below Lewiston). — It has a length of 0.10 of a mile and a fall of 3.4 feet, giving a rate of fall of 34 feet per mile, and a current of 8.8 miles per hour. A depth of 8 feet was found at the shoalest place. The swift water is caused by insufficient cross section, the river narrowing from 800 feet to 230 feet between a low gravel bar on the right bank, about 500 feet wide and 2 feet deep above low water, and a low rocky bluff on the left. The only impediment to navigation is the strong current. No improvement is proposed. Alpowa (9.4 miles below Lewiston). — A small settlement on the left bank of the river at the mouth of Alpowa Creek. A current ferry is maintained at this point. 6. Alpowa Rapid (9.42 miles below Lewiston). — It has a length of 0.19 of a mile and a fall of 1.1 feet, giving a rate of fall of 5.79 feet per mile. Seven feet was the shoalest water found here. No special obstruction to navigation ex- ists. 7. Steptow Rapid (11.06 miles below Lewiston). — It has a length of 0.55 of a mile and a total fall of 5.3 feet, or a rate of fall of 9.64 feet per mile. The difficulty here is the strong 5277 current, 7.1 miles per hour, and the crooked, narrow chan- nel. Five and five-tenths feet depth at low water was found at the shoalest point. The river at the head of the rapid has a width of about 750 feet between high banks, and is divided by a low island 500 feet wide and 1.5 feet above low water. This throws the main body of water into a channel on the right about 250 feet wide, the other channel on the left being only about 120 feet wide and 1 foot deep. This reduction of the section, taken in connection with a shoal just above the rapid, has a damming effect, the channel acting as a spill- way. The improvement proposed at this place includes the deepening and straightening of the channel by dredging. 8. Little Pine Tree Shoal (13.01 miles below Lewiston). — It is probably caused by the river attaining the extreme width of 1,000 between low-water shore lines with a very uniform cross section. The depth of water varies from 2 to 7 feet, and falls at the rate of 4.5 feet per mile with a current of about 4 miles per hour. Dredging is necessary at this place. 9. Little Pine Tree Rapid (13.12 miles below Lewiston). This rapid has a length of 0.28 of a mile and a fall_of 6.9 feet, or at the rate of fall of 24.64 feet per mile. The only special impediment to navigation is the strong current, which flows at the rate of 7.5 miles per hour. The least depth of 1595 5278 water found here was 8 feet. The rapid is caused by a low gravel bar which extends out from the right bank about 400 feet. This has the effect of diminishing the width of the river from 900 feet just above the bar to 350 feet opposite it. No improvement is proposed at this place. .10. Riffle No. 2 (15.03 miles below Lewiston). — No diffi- culty is nojv experienced in navigating the river at this point. The rate of fall per mile is but 1.5 feet, with a slow current; 4.5 feet was the least depth found. No improvement is thought necessary at the present time. 11. Teamway Rapid (16.06 miles below Lewiston.) — This place offers now no special difficulties to navigation. The rapid has a total fall of .8 feet, or at the rate of 8 feet per mile. It is but 0.1 of a mile in length. The least depth found was 13 feet. Bucket Tramway (17.36 miles below Lewiston). — Con- sists of a system of buckets hung on a wire rope for bring- ing wheat down from the farming land^ about 1,500 feet above the river, to the steamer landing on the south bank of the river. 12. Rapid No. 8 (19.73 miles below Lewiston). — It is 1.17 miles in length and has a total fall of 5.2 feet, or at the rate of 4.45 feet per mile, with a current of 5.2 miles per hour. It has never been considered a difficult place to navigate. Four feet was the least depth found. Several boulders should, 5279 however, be removed at this place. 13. Rapid No. 9 (23.73 miles below Lewiston). — It has a length of 0.17 of a mile and a fall of 2.4 feet, or af the rate of 14.12 feet per mile. It has a current of 7 miles per hour. The only impediment offered to navigation is the strong current, there being 5 feet of water at the shoalest places. 14. Granite Pine Rapid (25.13 miles below Lewiston). — It is 0.41 of a mile in length and has a fall of 4.9 feet, or at the rate of 11.95 feet per mile. It has a current of 5.35 miles per hour. The only important obstruction to naviga- tion at this point consists of two rocks about 1.5 feet below low water. These rocks aggregate about 50 cubic yards. The rapid is caused by a sunken ledge of rocks extending across the river which has caused a bar about 600 feet wide to form on the right bank. The effect of this is to reduce the dis- tance between the water lines from 900 feet above the rapid to 400 feet at its narrowest place. There are many sunken rocks and boulders in this stretch, but a fair channel is open near the left bank. The soundings gave 5 feet of water at the shoalest place. The two boulders above mentioned should be removed. Granite Point (26.51 miles below Lewiston). — A granite ledge cropping out about 150 feet below the level of the 1596 Snake River, — U. S. Eng. Rep. 1901. — Continued. water at the north side extends across the river, showing on 5280 the opposite bank. The granite in this quarry is of an excellent quality. It has been worked for about twenty years. Among other structures built of this stone might be men- tioned the piers for the bridge across Snake Elver at Ains- worth, and the new Custom House at Portland, Oreg. The water at this place has a depth of 45 feet, being the deepest water between Lewiston and Riparia. Tramway (28 miles from Lewiston). — A tramway on the left bank of the river which is operated by the gravity sys- tem, the loaded cars coming down pulliug the empty cars up. It is for the purpose of bringing wheat down to the river from the farming lands on the hisrh plateaus. Wawawa is a small settlement on the right bank of the river, 29.3 miles below Lewiston. A current ferry is oper- ated at this point, it being one of the crossings of the Pome- roy-Colfax wagon road. 15. OriELDs Bar. (31.56 miles below Lewiston.) — The river at this place has a low-water width of 800 feet, and a high-water width of about 2,500 feet. It has a fall of 6.2 feet in 0.5 of a mile, or at the rate of 12.4 feet per mile, and has a current of 6.3 miles per hour. About 100 feet out from the right bank there is a long, narrow island exposed for a width of about 20 feet at low water, which parallels the shore for about 1,000 feet. This terminates at the lower end in a 5281 bar which extends diagonally across the river, connecting with a small island near the right shore about 1,200 feet be- low. The water on this bar has a low-water depth of 1.5 feet. Between the upper end of this narrow island and the left shore of the river the water has a depth of 4 feet, and a point about opposite the lower end of the island and about midway between it and the left shore the water has a depth of 5.5 feet extending up and down stream for about 400 feet. The method employed in navigating this part of the river at low water has been to keep near the right shore, passing through the chute-like channel between the narrow island and the right shore and following the right bank for about 400 feet above the head of the island (see map). This is nec- essary on account of shoal water extending above the head of the island. The current is very strong in this narrow passage, necessitating the use of a line on up-stream boats. This narrow channel has a depth of 2 feet at its shoalest place, but owing to its trough-like shape the action of the wheel prevents up-stream boats from getting full benefit of the water. It is proposed to improve this place by cutting through the bar below the island, thus allowing boats to pass into this deep water opposite its lower end. Between this point and the deep water above the shoalest water found was 4 feet. 1597 16. Log Cabin Kapid (32.81 miles l)elow Lewiston). — It has a length of a mile and a fall of 3.3 feet, or at the rate of 5282 7.33 feet per mile, and has a current of 5.10 miles per hour. By following a tortuous channel a depth of 3 feet was found. Just above the shoal the river, which has a width of about 700 feet, is divided by a low island about 300 feet wide and 1,500 feet long. Near the right shore the water passing to the right of this island has a width of about 250 feet and a depth of about 1.5 feet. This island terminates at its lower end in a shoal which extends across the river, giving a depth of 3 feet near the left bank. A dike, now in bad repair, has been built by the United States in previous years to prevent the water from passing behind this island and by throwing all the water into the main channel to increase its depth. The method of navigation employed with up-stream boats has been to skirt the left shore until about ox>posite the lower end of the island, then turn abruptly toward the dee}>er water about midstream. A crib tilled with rock has been erected near the left bank at the point where the turn is made to prevent boats from drifting upon the rocky shore. As the channel is so near tlie shore, this has always been a very difficult place to navigate, especially during high winds. The proposed improvement contemplated repairing the dike men- tioned and cutting a straight channel 5 feet deep through the shoal. 17. Altoma Dead March (33.94 miles below Lewiston) — 5283 It has a length of 0.92 of a mile, with a total fall of 5 feet. It has two pitches, one of which falls at the rate of 5 feet to the mile with a current of about 5 miles per hour, the other at the rat^of 8.33 feet per mile with a current of 7 miles per hour. This last pitch is about 0.1 of a mile in length. The soundings showed a 3.6-foot channel at low water. The river has ^ low-water width of about 600 feet and a high-water width of about 1,500 feet. No difficulty is generally ex- perienced in navigating this portion of the river, and no im- provement is proposed at present. Almota (36.30 miles below Lewiston). — A settlement on the right bank of Snake River and is the principal settlement between Lewiston and Riparia. The building of railroads on the table-lands back from the river on each side has robbed it of much of its importance, but large shipments of wheat are - still made from this point. A current ferry is operated here, it being on the Pomeroy-Colfax wagon road. 18. Ilia Bar (37.62 miles below Lewiston). — The river at this point has a low-water width of about 1,000 feet and a high-water width of about 1,400 feet. Opposite the lower ' end of the shoal the river is divided by a large island, the main body of water flowing to the left and a stream about 250 feet wide and 1 foot deep flowing to the right. The shoal 1598 Snake River, — U. S. Eng. Rep. 1901. — Continued. connects the upper end of the island with the left shore. This is not considered a difficult place. A 4-foot channel was found. 5284 No improvement is proposed at present. 19. Ilia Rapid (38.13 miles below Lewiston). — It has a length of 0.59 of a mile and a fall of 7.4 feet, or at the rate of 12.53 feet per mile, with a current of 7.6 miles per hour. The least depth of water found was 6 feet. At about the head of the rapid the river is divided by a large island which crowds the main body of water into a channel on the left about 330 feet wide. The channel, which keeps to the right of the island, is about 250 feet wide and 1 foot in depth. The only impediment to navigation at this point is the strong current. No improvement excepting the removal of one rocky boulder is considered necessary. Ilia (38.57 miles below Lewiston). — A small settlement on the left bank of the river, and is a wheat- shipping point of considerable importance. 20. Lower Ilia Rapid (40.21 miles below Lewiston)- — It has a length of 0.12 miles and a fall of 1.4 feet, or at the rate of 11.67 feet per mile. Tliere is no impediment to navigation at this place. The shoalest water found was 5 feet. 21. Wades Rapids (42.61 miles below Lewiston). — It has a total length of 0.59 of a mile and a total fall of 4.5 feet. The upper half falls at the rate of 5.77 miles and has a current of 7 5285 miles per hour. The lower half falls at the rate of 5.77 miles per hour. The river, which is about 900 feet wide just above the rapid, is divided by Atwood Island, which throws the main body of water into a channel on the right side about 300 feet wide. The channel on the left of the island is about 100 feet wide and 1.5 feet deep. The least water found on this rapid was 6 feet. The only impediment to navigation is the strong current. No improvement is proposed. 22. Rapid No. 16 (46.01 miles below Lewiston). — It has a length of 0.27 of a mile and a fall of 2.3 feet, or at the rate of 8.22 feet per mile, with a current of 4.50 miles per hour. The river has a width of about 600 feet. The least depth found was 5 feet. No obstruction to navigation was found here. 23. Upper Pennewawa Rapid (47.93 miles from Lewiston) — It has a length of 0.36 of a mile and a fall of 3.3 feet, or at the rate of 9.17 miles per hour. It has a current of 7 miles per hour. The shoalest water found was 5 feet. The rapid is caused by an insufficient cross section, the river narrowing down to about 400 feet between low water lines. No improve- ment is now needed at this place. 24. Lower Penewawa Rapid (48.72 miles below Lewiston). — It has a fall of 1.5 feet in a distance of 0.20 of a mile, or at the rate, of 7.5 feet per mile. The river has a width of about 5286 600 feet and a depth of 6 feet. No improvement is necessary 1599 except removing two rocks, aggregating about 40 cubic yards. Penewawa (49.56 miles below Lewiston) — A small settle- ment on the right bank of the river. It has a store, post office and hotel. A current ferry is operated here. 25. Willow Kapid (50.74 miles below Lewiston). — It has a total length of 0.66 of a mile divided into two pitches. The first has a fall of 2.5 feet, or at the rate of 10 feet per mile, and a current of 8 miles per hour; the second has a fall of 2.8 feet, or at the rate of 6.83 feet per mile, and a current of 7.4 miles per hour. The least depth of water found was 6.5 feet. The river just above the rapid has a low-water width of about 800 feet. It is divided by an island which contracts the main channel to a width of aliout 300 feet. The main body of water flows to the right of the island. The channel to the left is about 30 feet wide and 1 foot deep. The only irn])edi- ment to navigation at this place is the strong current, which, setting toward the head of the island on the left, sometimes necessitates the use of a line. No im])rovenient is ]iroposed. Central Ferry (56.57 miles below Lewiston) is a current ferry at the crossing of wagon road. 26. Dead Man Kapid and Bar (56.86 miles below Lewis- ton).— It has a length of 0.36 of a mile and a fall of 4.4 feet, 5287 or at the rate of 11.28 feet per mile. It has a current of 6.10 miles per hour. The soundings gave a depth of 2.8 feet at the shoalest place. The river at this point is divided by Dead Man Island, the main channel, about 600 feet wide, goir>^ to the right. The channel passing to the left is about 200 feet wide and 1.3 feet deep. Dredging to 5 feet depth will be necessary. 27. Diamond Crossing (58.32 miles below Lewiston). — It is a long, diagonal bar extending from New York Bar on the left to the right bank. Three feet was the least depth found at this shoal. To secure a 5-foot channel it will be necessary to dredge. 28. New York Bar Kapid (59.96 miles below Lewiston). — It has a length of 0.44 of a mile, and a fall of 3.80 feet, or at the rate of 8.64 feet per mile. It has a current of 7 miles per hour. The least depth found here was 6.5 feet. The river above the rapid has a width of about 1,200 feet. It is divided by a low island about 800 feet wide, the main body of water flowing to the right through a channel about 400 feet wide. The channel to the left is about 50 feet wide. The rapid is the result of this narrowing of the waterway. The strong current is the only impediment to navigation. No improve- ment is proposed. 29. Upper Goose Island Kapid (63.76 miles below Lewis- ton). — It has a length of 0.47 of a mile and a fall of 4.3 feet, or at the rate of 9.15 feet per mile, with a current of 7 miles 5288 per hour. Three and five-tenths feet was the least depth 1600 Snake River, — TJ. 8. Eng. Rep. 1901. — Continued. found. Just above the rapid the river has a width of 1,300 feet and is here divided by the upper island of the group known as Goose Island, which extends down the river for about 4 miles. These islands are three in number, the most elevated being about 16 feet above low water, the river at this point being 2,000 feet wide. The main channel keeps near the right bank and is about 400 feet in width. The chan- nel on the left of this upper island is about 475 feet wide and has a depth of 5 feet. This is again divided. One branch, bearing to the right, passes between the upper island the sec- ond of the group. This channel has a width of about 200 feet and a depth of 1 foot. The channel which keeps to the left has a width of about 250 feet and a depth of 1.5 feet. It has a very strong current and is blocked with many bowlders. It is not considered necessary, however, to make any improve- ment at this place at this time. 30. Goose Island Bar (64.60 miles below Lewiston). — This bar has formed in the pool between upper Goose Island Rapid and Goose Island Rapid proper and near the head of the latter. The water on the bar has a depth of 2 feet. The river here has a width of about 1,800 feet and is divided by the lower island of the Goose Island group, the upper end of this island being about opposite the bar. A shallow chan- nel flows between the second of the group and this low^er island 5289 about 400 feet wide and 1 foot deep. Two dikes have been constructed across this channel for the purpose of contracting the flow of water over the bar. The first built was placed across the channel at a point about 300 feet back of the should- ers of the two islands. This dike is in bad repair. The last constructed is on a line between the shoulders of the island, but lacks about 500 feet of connecting them. The improve- ment proposed for this place is to complete the last-men- tioned dike and cut a channel 60 feet wide and 5 feet deep through the bar. 31. Goose Island Rapid (64.67 miles from Lewiston). — It has a total length of 0.38 of a mile and a total fall of 5.3 feet at its steepest place. It falls at the rate of 29.17 feet per mile, with a current of 8.8 miles per hour. The shoalest water found over this rapid was 6 feet. The river is here divided by the lower island of the Goose Island groups, the main body of water flowing through a channel on the right about 200 feet wide. The river at this point has a high-water width of about 1,800 feet, there being a low bar on the right about 1,100 feet wide. No improvement is contemplated at this rapid. 32. Little Goose Island Rapid (67.75 miles from Lewis- ton). — It has a length of 0.35 of a mile and a fall of 3.5 feet, 5290 or at the rate of 10.28 feet per mile, and a current of 5.3 miles per hour. The shoalest water found was 3 feet. The river at this point has a width of about 1,500 feet and is di- 1601 vided by Little Goose Island, the main body of water flow- ing to the right in a channel about 550 feet wide. The branch flowing to the left is about 100 feet wide and 1.5 feet deep. Near the right bank of the main channel there are many sunken rocks. The steamer channel lies near the right bank of the island. No improvement is considered necessary at this place at the present time. 33. Little Goose Island Bar (68.50 miles below Lewis- ton). — It is a continuation of Little Goose Island. It begins at the lower end of the island and crosses the river diagonally, connecting with the right bank of the river about 1,500 feet below. The river at this place is about 1,200 feet wide. The water has a depth of 3 feet at its shoalest place. It is pro- posed to improve at this place by dredging a channel 60 feet wide and 5 feet deep through the bar. 34. Rapid No. 24 (69.01 miles below Lewiston). — This rapid has a length of 0.47 miles and a fall of 3 feet, or at the rate of 6.38 feet per mile, and a current of 6.5 miles per hour. The least depth found was 6.5 feet. The river at this point has a width of about 550 feet. It is flanked on the right by a low gravel bar about 800 feet wide. No impediment to navi- gation was found at this place. 5291 35. Upper Riparia Rapid (71.03 miles from Lewiston). — It has a length of 0.29 of a mile and a fall of 3 feet, or at the rate of 10.35 feet per mile, and a current of 6.10 miles per hour. The least depth found was 7 feet. The river is here divided by McGuires Island, the main body of water flowing to the right through a channel about 400 feet wide. The channel is about 200 feet wide and 1 foot deep. No improve- ment is necessary at the present time. Riparian Bridge (72.85 miles from Lewiston and 73.5 miles from initial point of survey). — This is the Snake River crossing of the Spokane Branch of the Oregon Railroad and Navigation Company’s Railroad. It has a length of 1,008 feet and a drawspan at the south end of 350 feet. Its grade is 38.1 feet above low water and 13 feet above high water. This is the initial point of the survey made of Snake River in 1897 from Riparia to the Columbia River, total length 66.7 miles; Lewiston to this bridge, 72.85 miles; Lewiston to mouth of river, 139.55 miles. Riparia (end of survey, 73.25 miles from Lewiston and 73.5 miles from initial point of survey). — A station on the Spokane Branch of the Oregon Railroad and Navigation Company’s Railroad. At this place all freight to and from river points between Lewiston and Riparia is transferred to rail, it being the lower terminus of the steamboat line to Lewiston. 5292 The vessels now in Snake River, between Lewiston and Riparia, are all stern-wheel, flat-bottomed boats, a list of which, with their dimensions is as follows: 1602 Snake River, — U.. S. Eng, Rep, 1901. — Continued. Draft. Length. Beam. Depth. Light. Loaded Ft. In. Ft. In. Ft. In. Ft. In. Ft. In. Spokane, 100 4 38 6 6 3 2 0 3 8 Lewiston 165 0 34 4 5 3 1 0 2 6 Almota 157 0 36 0 5 0 1 8 3 6 Norma 160 0 32 6 5 6 1 11 3 4 191 0 36 4 6 0 27 3 9 The difficulties encountered arise in all cases from insuffi- cient depths, occasional obstructing bowlders, and swift cur- rents. Near low water stages the steamers find it necessary at present to lay out ropes fastened to trees or to posts conven- iently placed and haul themselves with steam windlasses over shoal places and through rapids too swift to be navigated otherwise. The boats being all flat-bottomed and the bars in this part of the river being all sand and gravel, this can be done without damage until the depth of water becomes insuf- ficient, when navigation ceases. The dimensions of the above steamers are said to be those found best by experience for the conditions to be met in this river, and will not likely change much in the future unless the conditions are decidedly al- tered. 5293 The comparatively large cross section of the river, the large discharge (22,000 feet per second), and the relatively high average slope (2.67 feet per mile) render the effect of the pro- posed dredged channels unimportant in changing the area of cross section so as to injuriously alter the currents or levels above, especially as the depth of cut to obtain 5 feet at low water is in most cases slight and not over 3 feet at the worst places. The dikes proposed to not increase the currents above what can be easily ascertained by the present boats. The river bottom at all these places is composed of coarse sand and gravel and small cobblestones which, if not found practicable to remove by increasing the currents by contracting dikes, can probably be easily dredged with a grapple bucket operated by a hoisting engine from a small derrick scow, especially if the bottom should be first loosened with small charges of explo- sives. In former years a heavy scraper towed by a steamer gave fairly satisfactory results in scraping bars. A depth of 5 feet at low water has been selected in the pro- ject for the improvement of the river below Biparia (see House Doc. No. 411, Fifty-fifth Congress, second session), and any 5294 extensive improvement above Riparia to be effective should provide no less depth than this over ail the above named shoals. The thorough improvement of this section would there- fore probably require a deepening of the channel through all these shoal places, the construction of a number of deflecting 1G03 dikes to secure and maintain the depths, and the removal of all the boulders and rocky points likely to interfere with ves- sels at low water. The navigation of this section of river, however, is at pres- ent limited to one vessel each way daily, and it is not deemed advisable to include more points for improvement at the pres- ent time than necessary to relieve the most troublesome places. Low water periods are of short duration, and present condi- tions are satisfactory except at low stages. For these reasons the extent of improvement proposed in this report provides only for the following, the dredged channels being 5 feet deep at low wmter and in most cases 60 feet wide.’^ 5295 James 0. Heywokth, a witness for defendant, testified as follows : Direct Examination. My full name is James 0. Hey worth. I am the same Mr. Hey- worth who has given his deposition in this case. In that deposi- tion this question was asked: — ^‘How deep was it at the time you got your coffer and levee inF^ and the stenographer has this as my answer: ‘‘We had about 16 feet gauge, I think, at that time, about 16 feet of water. If I did so answer, it is not correct. The correct answer to that question would be that coffer dam would hold out about 12 feet of water, a 12-foot head of water there. The water at that time was somewhere around 6 feet deep, I think, running all the way from. 5 to 8 feet along the time that we were putting in the 5296 coffer-dam, with the exception of some flood days. Then wherever it appears in that deposition I gave that the water was 16 feet at the point where the coffer dam was being con- structed, that is an error. In one or two places where I was asked about elevations, the deposition states that I gave Chicago City datum in connection with my elevation; I speak of certain eleva- tions there as “Chicago City datum, that is not correct. We were speaking about, as I remember it, some glacial drift, or some- thing, I don’t remember how that came in, but the elevations on the work that we were working by down there are Hennepin datum. Counsel foe Defendant. That is all. 1604 0 J. W. WoEEMANN^ recalled for defendant, testified as follows: The width of the river where the gauge is at Eiverside, is very much narrower than the width of the river say between Eomeo and Lockport. 5297 Q. If there was 15 inches at the gauge in Eiverside, would there be the same depth all the way down the river, or would it depend upon the width of the stream! (Objected to; overruled.) It would depend on the width of the stream as well as on the slope. Q. Well, just how would it depend on the slope! I can under- stand about the width of the stream, it would be scattered over a wider territory, but how would it depend on the slope! A. This is in the 12-mile level, wdiere there is little or no slope and frequent pools in places, so there would be more water. The water would collect in the pools and run over the bars between the pools. I was about to add, if you will permit me, that between Eomeo and Lockport the river is spread out over quite a width, with innumer- able islands between them, as well as a sharp slope, and there would be very much less water in depth than there would be at Eiverside for the same time. Q. How about down below, the river generally below Lock- 5298 port, how does it compare in width with the width at Eiver- side! (Objected to; overruled.) A. The width in the vicinity of the Eiverside gauge is about 150 feet. Counsel for Defendant. Now, I want to show the location of certain lands with reference to a decision of the Supreme Court. The property was located in a canal section. I will say to counsel that I am making the proof with reference to a case I shall cite on the argument. City of Chicago v. Fullerton, in the 152 111., p. 24, affecting the title to an odd numbered section, a canal section. I 1605 want to show that the land was in an oft numbered section, a canal section, and also that it was sold after the Act of 1839. Counsel for defendant then offered in evidence a certified copy of the entry of the patent to Alexander N. Fullerton by the State of Illinois, which is dated March 27, 1848, certified by Abel 5299 Davis, Kecorder of Deeds, as a copy of the record, and the cer- tificate is dated the 15th day of June, 1908. (Objected to as irrelevant, incompetent and immaterial; overruled.) Said document is as follows: ‘‘Defendant's Exhibit, Fullerton. State of Illinois “to” Alexander N. Fullerton. March 1848. Mar. 27 Issued Patent to Alexander N. Fullerton for N. W. i N. E. Sec. 31, T. 40, N. E. 14 E. 3d P. M. 40 acres, also for N. E. i N. E. i Sec. 31, T. 40 N. E. 14 E. 3d P. M. 40 acres. 5300 United States of America State of Illinois Office of Secretary * I, George H. Harlow, Secretary of the State of Illinois, do hereby certify thai the foregoing is a true copy of an entry in the Executive Eecord of the State of Illinois, under date of March 27, 1848, which record is now on file in this office. In witness whereof, I hereto set my hand and affix the Great Seal of State at the City of Springfield this 3rd day of August A. D. 1878. Seal of the State Geo'. H. Harlow, of Illinois Aug. 26th Secretary of State. 1818. No. 190110 Eecorder Aug. 7, 1878 at 1 P. M. Jas. W. Brock- way, Eecorder. State of Illinois County of Cook I ss. I, Abel Davis, Eecorder of Deeds and Keeper of Records in and for said county in the state aforesaid, do hereby certify that the foregoing is a true and correct copy of the record of a certain instrument filed in my office the seventh day of Aug- ust A. D. 1878 as Document No. 190110 and recorded in Book 474 of Eecords at page 107. In testimony whereof, I have hereunto set my hand and 1606 affixed my official seal at A. D. 1908. (Seal) Chicago, this fifteenth day of June (Signed) Abel Davis, Recorder.’^ 5301 John A. Linden, a witness for defendant, testified as follows: Direct Examination. My name is John A. Linden. I reside at 311 Cuyler avenue. 1 am connected with the office of the recorder of deeds of Cook County, Illinois, in the employ of the recorder. I am familiar with the location of Fullerton ^s Third Addition to the City of Chi- cago with reference to the section in which it is located. Q. Well, where is it located? (Objected to as incompetent, irrelevant and immaterial; overruled.) A. It is east of the Chicago Kiver and in the north half of Section 31, Township 40 North, Eange 14 East of the Third P. M. It was considered as a canal section originally. It is chief- 5302 ly in the northeast, that is, in the northeast quarter of the northeast quarter of Section 31. I have Plat Book No. 12 from the recorder's office, and that is kept in the recorder’s office and one of the books of the office. On page 78 of that book ap- pears Canal Trustees’ Subdivision 'of the west half of Section 5, Township 39 North, Eange 14 East of the Third Principal Merid- ian, except the southeast quarter of the northwest quarter and the northwest quarter of the southeast quarter. Lot 9 bor- 5303 ders on the river to the west of the north branch of the Chi- cago Elver. (Objected to as not the best evidence for the witness to state that it borders on the river.) Counsel for defendant then offered in evidence the plat, a copy of the plat to be made and substituted afterwards. Said copy of said plat was received in evidence. (Atlas, p. 3990; Trans., p. 6707; Abst., p. 1937.) 1607 5304 On page 89 of that book appears Canal Trustees’ new sub- division of blocks in the east fraction of the southeast frac- tional quarter of Section 21, Township 39 North, liange 14 East. (Counsel for defendant offered that plat in evidence also; objection as incompetent, irrelevant and immaterial; over- ruled.) (Leave to substitute a copy.) Said copy of said plat was received in evidence. (Atlas, p. 3991; Trans., p. 6712; Abst., p. 1937.) 5305 Counsel for defendant now offered a certified copy of deed by the Board of Trustees of the Illinois and Michigan Canal to Joseph Dinet. (Objected to as incompetent, irrelevant and immaterial. Overruled.) Said copy of deed is abstracted as follows: 5306 Knovv^ all men by these peesents, That the Board of Trustees of the Illinois and Michigan Canal * * * sold to Joseph Dinet the following described lots of land, to- wit : Lots number one (1), two (2), nine (9), ten. (10), thirteen (13), twenty-four (24) and twenty-five (25) in the said Trus- tees’ Subdivision of the west part of section number five (5) in Township number thirty-nine (39) north of Range number fourteen (14) east of the Third Principal Meridian * * * Know Ye Also that the said Joseph Dinet paid to the treas- urer of the said Board of Trustees the sum of thirty-two hun- dred and sixty ($3,260) dollars and cents being in full payment of the purchase money for said land * * * 5307 In consideration thereof and the premises the said Board of Trustees of the Illinois and Michigan Canal has granted, bargained * * * To have and to hold * * * In witness whekeof, * * * this 21st day of October in the year of our Lord eighteen hundred and fifty-one. The Boakd of Trustees Illinois and Michigan Canal, W. H. Swift, President. Wm. Gooding, Secretary. 1608 Deed to Dinet. — Continued. State of Illinois Cook County No. 51579 filed for record 22 Oct. 1851 & recorded in Book No. 1 of Canal Deeds on page 1. No. 531269. L. D. Hoaed, Recorder. Filed for re-record March 15th, A. D. 1884, at 3 o’clock P. M. Jas. W. Bkockway, Recorder.^’ 5308 (Certificate of Abel Davis, Eecorder, that the foregoing is a true copy.) 5309 Counsel for defendant read in evidence deed from the trus- tees of the Illinois and Michigan Canal to certain properties described in plat appearing upon page 89 in the book identified, the deed being to Thomas Stinson. Said copy of deed was admitted in evidence and is abstracted as follows : Know all men by these peesents, That the Board of Trustees of the Illinois and Michigan Canal * * * Pas sold to Thomas Stinson, the following described lots of land, to-wit : Lots numbered one (1) in Block (38), eight (8) and ten (10), in Block thirty-five (35), two (2) and three (3) in Block thirty- four (34), two (2) in Block fourteen (14) and one (1) and seven (7) in Block thirty-five (35), all of said lots and blocks being in the said Trustees’ Subdivision of lots and blocks in the west part of Section twenty-one (21) in Township thirty- nine (39) North of Kange fourteen (14) east of the Third Principal Meridian * * * 5310 Know Ye also, that the said Thomas Stinson, paid to the treasurer of the said Board of Trustees the sum of three thousand one hundred and thirty-five dollars and cents, being in full payment of the purchase money for said laud * # * In consideration thereof, and the premises the said Board of Trustees of the Illinois and Michigan Canal, has granted, bar- gained * * To have and to hold * * * 5311 In witness wheeeof * * * this 27th day of September in the year of our Lord eighteen hundred and fifty-two. W. H. Swift, Corporate seal. President. Wm. GtOODING, Secretary. 1609 State of Illinois, ) .. oroAn County OF Cook. [ No. 36849. Filed for Record 30 Sept. 1852, and recorded in Book 1 of Canal Deeds, page 273, L. D. Hoard, Recorder. No. 57981. Refiled for record Sept. 24 A. D. 1872. Norman T. Cassette, Recorder. (Certificate of Abel Davis that foregoing is a true copy.) 5312 Counsel for defendant also offered certified cox)y of deed from the Board of Trustees of the Illinois and Michigan Canal to William Greene, of property in the plat contained on page 89 of this book. Said cox>y of deed was admitted in evidence and is alistr acted as follows: Know all men by these presents, That the Board of Trustees of the Illinois and Michigan Canal * * fias sold to William Greene the following described Lots of land, to- wit : Lot number one (1) in Block number fourteen (14) Lot num- ber nine (9) in Block number thirty-five (35) and Lot num- ber three (3) in Block number thirty-seven (37) in the said Trustees Subdivision of the AAest half of Section number twenty-one (21) in Township number thirty-nine (39) North, of Range number fourteen (14) East. * * 5313 Know Ye, also that the said Y7illiam Greene j3aid to the Treasurer of the said Board of Trustees the sum of fourteen hundred and eighty dollars and — cents, being in full payment of the purchase money for said land — In consideration thereof, and the premises, the said Board of Trustees of the Illinois and Michigan Canal has granted, bargained. * * * To have and to hold the same. * * * In witness whereof * * * this 22nd day of October, in the year of our Lord eighteen hundred and fifty-one. The Board of Trustees of the Illinois & Michigan Canal, W. H. Swift, President. Wm. Gooding, Secretary. 1610 Deed to Greene, — Continued, 5314 State of Illinois^ Cook County. i ss. 34392. Filed for record 6 May, 1852 and recorded in Book No. 1 of Canal Deeds, page 183. No. 183269. L. D. Hoakd, Recorder. Be-recorded Jnn 5, A. D. 1878, at 12 M. Jas. W. Brock way, Recorder, (Certificate by Abel Davis, Eecorder, that foregoing is a true copy.) 5315 Counsel for defendant read in evidence deed from the Board of Trustees of the Illinois and Michigan Canal to Gideon M^estbrook of property in the same subdivision contained on page 89 of Book 12, and is abstracted as follows : Know all men by these presents, That the Board of Trustees of the Illinois and Michigan Canal * * * has sold to Gideon Westbrook, the following described lot of land, to- wit : Lot number four (4) in Block number four (4) of the said Trustees Subdivision of the west part of Section number twenty-one (21) in Township number thirty-nine (39) North, of Range number fourteen (14) East of the Third Principal Meridian. * * * 5316 Know Ye Also, that the said Gideon Westbrook paid to the Treasurer of the said Board of Trustees the sum of Pour Hun- dred and Ten Dollars and — cents, being in full payment of the' purchase money for said land. * ^ * In consideration thereof, and the premises, the said Board of Trustees of the Illinois and Michigan Canal, has granted, bargained. ^ * To have and to hold. * * * In witness whereof, * * * this 22nd day of October in the year of our Lord eighteen hundred and -fifty-one. The Board of Trustees of the Illinois & Michigan Canal, W. H. Swift, President Wm. Gooding, Secretary, 1611 5317 State of Illinois, ) ^ Cook County. j 31724. Filed for record 3rd November, 1851, and recorded in Book 1 of Canal Deeds, page 9. L. D. Hoakd, RccoTdc't\ No. 252022. Ee-recorded Jan. 9, 1880, at 10 A. M. Jas. W. Brockway, Recorder. (Here follows certificate of Abel Davis, Eecorder, that the fore- going is a true copy.) 5318 I have another book. Volume 496 of Tract Indices, taken from the office of the Eecorder of Deeds of Cook County, Canal Trustees Subdivision of the west half, 21-39-14 appears in that book on the fly leaf. (Same objection.) Copy of said plat was offered and received in evidence (Atlas, p. 3992; Trans., p. 6718; Abst., p. 1937.) 5319 Charles A. Munroe, a witness for defendant, testified as follows : Direct Examination. My name is Charles A. Munroe. I am the Mr. Munroe, who has been referred to in the testimony here quite frequently. I am an attorney by profession. I have not practiced my profession for about two or three years. I first became identified with this pro- ject to build a dam on the Desplaines Eiver, somewhere in the neighborhood of the Illinois in the spring of 1904. I had not any connection at that time of any nature with the Economy Light & Power CompamL The first time that I had any negotiations with the Economy Light & Power Company in reference to this project was in May, the latter part of April, or the first week in April, 1906. Q. In the meantime you had acquired flowage rights, or own- ership to a large proportion of this property as shown on Woer- mann’s Exhibit 1, June 15, 1908, and Woermann Exhibit 2, June 15, 1908, had you not? 1612 Charles A. M unroe, — Direct Exam. — Continued. 5320 (Objected to as incompetent, irrelevant and immaterial and not the best evidence; overruled.) A. I had acquired title to all of the property, contracts for title to all of the property shown in colors on those two exhibits, and had made all financial arrangements for constructing the power house and dam at the mouth of the Desplaines Eiver. Counsel for Complainant. I move that the latter part of the answer be stricken out. (Sustained.) Counsel for Defendant. I will ask another question. Q. Had you made any arrangements with reference to construct- ing this dam before you had any negotiations with the Economy Light & Power Company? A. Yes, sir. Q. Please state what they are. (Objected to as incompetent, irrelevant and immaterial; overruled.) A. Yes, sir; and the arrangements were completed for con- structing, in the spring of 1906, a power plant at the mouth of the Desplaines Eiver, at substantially the same location, and of the same character as the power house the Economy Light & Power Company is now attempting to construct. 5321 Q. How many acres of land have you acquired? Counsel for Complainant. Objected to as incompetent, irrelevant and immaterial and as not the best evidence. A. About seventeen hundred. Q. When did your negotiations with the Economy Light & Power Company ripen into a definite contract? Counsel for Complainant. I suppose it is not necessary to re- peat the objection. The Court. No; your objection may go to the whole line. A. (Continued.) The 31st of July, 1906, the arrangements were made, subject to examination of title and were consummated by the passing of the deeds on the 30th day of November, 1906, and contemporaneous with the passing of the deeds, the trust 5322 deeds were executed bearing date December 1, 1906, to the 1613 Eoyal Trust Company, trustees, to secure an issue of three millions of bonds. Counsel for Defendant. • How many of those bonds have been sold, if any? (Objected to; overruled.) A. Two millions of the bonds have been sold. Q. And the trust deed executed to the Economy Light & Power Company? A. Yes, sir. Q. Does the trust deed convey these properties? A. It does. Q. Are those bonds now outstanding? A. They are. Counsel for Complainant. I take it that it is understood by the court and by counsel that the objections I have made, that the evidence is incompetent, irrelevant and immaterial, and not the best evidence, is reserved to each of these questions, and I make a motion to strike out all of the testimony relative to the title to the property, and the issuing of the bonds' on the same grounds. The Court. The contents of the trust deed is not the best evi- dence. 5323 Counsel for defendant offered the deed of trust from the Economy Light & Power Company to the Royal Trust Com- pany. (Objected to as incompetent, irrelevant and immaterial ; overruled.) (Said deed of trust from the Economy Light & Power Company to the Royal Trust Company was received in evidence.) (App. II, p. 3906; Trans., p. 6302; Abst., p. 1854.) 5324 Cross-Examination. I did not attend the taking of the depositions on the part of the State at Joliet in the early part of this year, as the attorney for the defendant. I was there at every opportunity that it was possible for me to be there. I am not an attorney for the defend- ant. I am an interested party in the defendant company. I am not an attorney for it. On two or three occasions, an attorney for the defendant was not there other than myself. Mr. Porter was unable to attend the meeting which had been arranged to take the depositions, and he telephoned to me and asked me if I would at- 1614 Charles A. Munroe, — Cross-Exam. — Continued. tend to it, and I did, to tlie best of my ability. I was the only at- torney tliat was there on the part of the defendant acting for Mr. Porter. I am the same Mr. Mnnroe who is shown to have been in attendance by the record in the taking of the depositions. I will not say that when the record shows that I made objections, 5325 and asked questions, and made statements, there was no other attorney for the defendant present. I think I injected remarks once in awhile that appear in the record where I didn’t have any business to do so. Well, leaving out the word ‘Re- marks,” when the record shows that ^^Mr. Munroe” was asking questions, I was that Mr. Miinroe, and generally speaking, I did that only when there was no other lavvwer for the defendant there. Re-direct Examination. I am and was at the time of the taking of the depositions, the General Manager and Treasurer of the company. I have not been paid any fee, or been retained and do not expect any fee as at- torney in this case. I learned when I was an attorney, that a party in interest might conduct his own suit if he wanted to, but 5326 I learned it was bad policy to attempt it. My connection with the Economy Light & Power Company began when the manager of the Economy Light & Power Company died on the 12th of January, 1907, and on the 16th of that month, I was ap^ pointed to his position. It has been testified here that I have paid certain moneys to the contractor, and have made certain con- tracts with him; in addition to that, the Economy Company has paid out moneys on account of the construction of this work, about $135,000. That is for machinery and wheels. In April of 1907, we purchased $142,000 worth of hydraulic machinery for this plant, upon which we paid $55,000, and engineers’ expenses and pay- ments for work done by the contractor, and to the contractor. Q. What is your approximate estimate of the entire cost of the work? 5327 Counsel for Complainant. I suppose it is understood that my objections to this as incompetent, irrelevant and imma- terial, stand to all of this supplemental evidence. The Court. Yes. 1615 A. Nine linndrecl thousand dollars; that is exclusive of the land. 5328 Counsel for complainant offered the report of 1886 — the annual report of the Chief of Engineers of the United States Army, part 3, 1886, the report by Lientenant Eobert E. Lee, made by him in 1837, of the Eock Island Eapids. They were not publishing the reports at that time — I guess the first and only time it was published was in the report of 1886 — the Eock Island Eapids of the Mississippi Eiver. The witnesses were all asked about that. It occupies passages on pages 1436 and 1437, with a map between. And the later report on the same rapids, in the an- nual report of the Chief of Engineers of the United States Army for 1880, part 2, under date March 15, 1880, pages 1537, 1538, by General McKenzie — he was only a Captain at that time. (The passages from said report by Lieutenant Eobert E. Lee, contained on pages 1436 and 1437 of said report for 1886, part 3, are in the words and figures following) : 5329 ^‘SuKVEY OP Lieutenant Eobert E. Lee. In 1837 Lieut. Eobert E. Lee, Corps of Engineers, United States Army, was assigned by order of General Gratiot, Chief Engineer, to the charge of operations under appropriation of $40,000 made by Act of Congress of March 3, 1837, for the improvement of the Mississippi Eiver above the mouth of the Ohio, and of the Missouri Eiver.’ The funds appropri- ated were assigned to the Des Moines and Eock Eiver Eap- ids and the Harbor of Saint Louis. In order to prepare the necessary plans. Lieutenant Lee made examinations of the localities mentioned and submit- ted his reports, with maps, to General Gratiot, December 6, 1837. The report was transmitted to the Senate of the United States January 27, 1838. Lee’s report runs as follows: ^ Saint Louis, December 6, 1837. Sir: Upon my arrival here in August last, in obedience to your orders assigning to my superintendence the application of the appropriations made by Congress for the improvement of the Mississippi Eiver above the mouth of the Ohio and the Mis- souri Eiver, * * * j proceeded to make such an examina- tion as would enable me to submit for your approval the neces- sary plans; a report of which I lay now before you. . The only serious obstacles to the navigation of the 1616 Rep. Robert E. Lee, Eng. Rep. 1886. — C ontinued. 5330 Mississippi from the mouth of the Ohio to the Falls of Saint Anthony, a distance of about 1,200 miles are the Des Moines and Eock Eiver Eapids, and as these, in my opinion, form the first objects of attention, surveys have been made of each, the result of which, with my views as to the best mode of their improvement, will be stated under each head. ***** Eock Eiver Eapids — The upper or Eock Eiver Eapids, dis- tance about 150 miles from the Des Moines, commence 14 mile;- above Eock Island and extend to its foot. Within this distance the Mississippi falls 25,740 feet, descending over a rocky bed, broken by reefs, which at some points reach en- tirely across the river, affording at low water a shallow chan- nel and projecting at others from opposite sides, interlock and form a winding, difficult, and dangerous passage. The fall of the river is not regular, but like that at the lower rapids, is greater over the reefs, and less in the intermediate pools formed in like manner by them. The velocity of the current, varying with descent, and con- tinually checked by the rough bed of the river, the winding of the channel and the projection of the reefs, though not as great as the fall would indicate, is still rapid and in many places difficult to stem. By an examination of the map you will see that the 5331 main channel, worn by the action of the water, is so dis- tinctly marked that there can be no doubt as to the best mode of improving it. The depth of the water is generally sufficient, and the difficulty consists in the short turns and narrow passes between reefs, which oblige boats to cross the current obliquely and incur the danger of being forced on the rocks. The descending boats, swept along by the current, run the greater risk, and the turns ought to be so regulated as to relieve them as far as possible. By cutting off the pro- jecting points of some of the ledges, and excavating through others, this danger will be avoided, and a safe passage formed. In the upper section, called the Sycamore Chain, it will be necessary to cut off the sharp angle at A, excavate through the ledge at B, and straighten the channel at C, D, and E by cutting off the points as indicated on the drawing. From the foot of this chain there is a stretch of 2 miles free from all obstructions to the head of CampbelFs Island, just below which it will be necessary to excavate through the reef to the depth of about 18 inches; to cut offi the point of the reef at G, extending from the western shore towards the small island at the foot of Campbell’s; excavate through the reef at L, making out from the eastern shore just above the mouth of Duck Creek, and cut off the point of that at M; all of 1617 whicli is indicated on the map. This will open a free passage to the head of Eock Island, the commencement of the lower 5332 chain, from which a flat reef extends to the Wisconsin shore, and through which a channel 200 feet wide, 25 feet deep, and 400 }mrds long will have to be excavated. The only other part to be improved is in the bend below, where the channel passes between two reefs projecting from opposite sides of the river. By cutting otf the point of that on the west all ob- structions will be removed to the foot of Eock Island. * * The removal of the obstructions, in both rapids, at the sev- eral points named will require an excavation of 172,000 cubic yards through the solid rock. The difficulty attending such an operation under water, which must be performed by blasting, is much increased by the rapid current of the Mississippi; the unexpected rise to which it is subject and the short season of operation. * * * So much depends upon circumstances that can neither be fore- seen nor controlled that the estimate presented of the prob- able cost of the work must only be considered conjectural.” Said passage from said report was received in evidence. The map accompanying said passage from said report was also received in evidence (Atlas, p. 3993; Trans., p. 6721; Abst., p. 1939.) 5333 (The passages above referred to, contained on pages 1537 and 1538 of said report for the year 1880, part 2, are in words and figures following) : 5334 ‘^United States Engineer Office. Eock Island, 111., March 15, 1880. General: I have the honor to acknowledge the receipt of a letter from your office, dated March 9, 1880, containing a resolution of the House of Eepresentatives calling for cer- tain maps and reports in reference to a proposed widening of the Eock Island Eapids. The accompanying map, which shows the present 200-foot channel and the work required for increasing this width to 400 feet, was prepared last winter, but as yet no reports on the subject have been made. I would therefore submit the following : The Eock Island or Upper Eapids of the Mississippi Eiver extend from Le Claire, Iowa, to Eock Island, 111., a distance of 14 miles. The river over this reach consists of a succes- sion of deep pools separated by chains of rocks, through 1618 Bock Island Rapids, — V. S. Eng. Rep. Continued. which the water, in the course of centuries, has cut irregular channels. The fall from the head to the foot of the rapids is about 20 feet, giving a velocity of current of from 2 to 10 feet per sec- ond at the shoal places. Previous to improvement the rapids could not be passed by the larger class of steamboats at a 2-foot stage, and at medium stages boats drawing from 3 to 4 feet could only pass on calm days and by using extreme caution. 5335 Congress caused a survey and report on the improvement of the rapids to be made in 1866. In 1867 the work of exca- vation was commenced, in accordance with the approved plan, which was to give a channel over the chains 200 feet in width, with a depth of 4 feet below low-water of 1864. From 1867 to 1879, inclusive, $1,150,650 were appropriated, for which sum about 90,000 cubic yards have been removed, vir- tually completed the above-mentioned plan. The work already accomplished has greatly benefited navi- gation, but still certain difficulties are met with. 1. The channel is so crooked that it is not practicable in its present condition to provide a system of lights, and the navigation of the rapids is suspended during the night. 2. The width of 200 feet is not sufficient to admit of 2 boats with barges passing each other, so that either the ascending or descending boat must wait in one of the deep pools until the other has passed through a cut. 3. A fresh breeze, acting against the very long and high ^Mississippi steamers, endangers, and a strong wind prohibits, navigation through the narrow channels. 4. A large steamer ascending the rapids through the com- paratively narrow 200-foot channels draws down the water to such an extent as to materially reduce the depth in the 5336 cuts, so that a 4-foot channel is not really available at all parts of the rapids during a low-water stage of the river. The most available plan that can be suggested for over- coming these difficulties, is, as shown on the accompanying map, to widen the present cuts, giving a new channel 400 feet in width. By this widening, the second and third difficulties would be done away with, the fourth would be greatly reduced, and by so straightening the channel as to obtain long reaches, lights could be established which would overcome the first difficulty. To increase the width of the channel to 400 feet giving a depth of 4 1/2 feet below low-water, which will insure a grade as low as that of the present cut, will require the removal of 209,811 cubic vards of rock, and will cost approximately $1,258,866. Boats drawing five feet can pass through the Ties Moines Bapids Canal during extreme low-water. 1619 If it is deemed advisable to., give the same available depth and a perfectly safe channel over the Eock Island Eapids, the cuts should be made 400 feet wide, and excavated to a . depth of at least 6 feet below low-water of 1864. This would require the removal of 581,835 cubic yards of rock, which would cost approximately $3,491,010. I have estimated the cost of removing rock at $6 per 5337 cubic yard, which would be sufficient, provided an appropria- tion was large enough to justify the building of cotfer-dams and a systematic method of working. The plans present could undoubtedly be so modified dur- ing the progress of the work as to require cutting on but one side of the channel, where it is now supposed to require cut- ting on both sides; such changes, when practicable, will re- duce the estimated cost. The interests of navigation of course require that in time all the proposed work shall be done, but as the obstructions at the Eock Island Eapids are made up of a succession of shoals, the improvement of each may be considered as sep- arate, complete within itself, and benefiting navigation just so much.’’ Said map accompany said report was also received in evidence (Atlas, p. 3993-A; Trans., p. 6723; Abst., p. 1939). (A copy of said map is printed in abstract, p. 1939.) 5338 Counsel for complainant then read in evidence in refer- ence to the falls of the Ohio, concerning which Captain Bewley, Captain Prior, and Captain Mason were interrogated, in the report of 1882, the annual report of the Chief of Engineers of the United States Army, part 2, for the year 1882, marked pass- ages pages 1881 and 1882, 1886 and 1887 and 1888, in words and figures following: 5339 Description. The obstructions to navigation in the Ohio Eiver, known as the Falls of the Ohio, are formed by an irregular mass of limestone lying in the bed of the river about 600 miles below its head, and about 366 above its mouth. The general direc- tion of this mass of rock is from southwest to northeast. It is a natural dam, which produces a deep pool just above, the difference of level between the water surfaces in this and in the pool below being about 26 feet in low and about 18 inches in the highest stages. In their natural condition these falls or rapids were im- passable during the largest portion of the year, and at all other times, excepting when the river was very high, naviga- tion over them was difficult and dangerous. When the river 1620 Falls of the Ohio, — Eng. Rep. 1882. — Continued. was high, the navigation was carried on in it without any dif- ficulty. There were three channels over these obstructions, known as the Indians, Middle, and Kentucky chutes. The former is the main and longest channel, and was the one most navigated. It runs near the Indiana shore, between it and Goose Island, and makes a large bend near the foot of the fall, called the Big Eddy. It was 4,659 yards, or about 2 2/3 miles long. At extreme low stages, about one-half of its total falls, that is, 13 feet, occurred in the first 1253 yards, 5340 or about seven-tenths of a mile, and about two-thirds of its fall, that is, 17 1/2 feet, occurred in the first 1,986 yards, or about 1 1/7 miles. When the water rose 7 feet at the crest of the falls above extreme low-water, it rose about 18 1/2 feet at the foot of the channel, and the difference of level be- tween the water surfaces in the two pools was about 13 1/2 feet. At this stage, the steamer Uncle Sam barely made the ascent on a trial. This steamer was owned by Mr. Paul Ander- son. Her measured tonnage was 440; she drew 9 1/2 feet of water, and was propelled by an engine of 250 horse-power. The Middle chute begins about the middle of the river and passes down between Goose and Eock Islands. The length of this channel is about 3,800 yards, or 2 1/6 miles long, and about 22 feet, or almost the entire fall is in the last 500 yards. All boats could ascend it when the water at the head rose about 13 feet. The rise in the pool below then amounted to about 29 feet, and the difference of level between the water sur- faces of the two pools was then reduced to about 9 feet. The Kentucky chute lies nearer to the Kentucky shore, and passes down between it and Eock Island. Its condition was similar to the Middle chute and it is navigable a little later than the Middle chute. Almost fhe entire fall is in the last 185 yards. The shortest line across this natural dam is via 5341 the Middle and Kentucky chutes, and is about 3,300 yards or 1 11/12 miles long. The observations which were made and recorded established the fact that on an average the falls were not navigable ten and a half months per annum. The fact that these obstructions were navigable at some stages and not at others arises from the circumstances (as indicated above) that when the river rises both pools rise, but not equally. The lower one rises by a greater amount in a given time than the upper one. A similar law exists as the river falls; that is, the lower pool falls more in a given time than the upper one. 1G21 II. History. I have recently come into the possession of a tracing of an engraving made for ^‘Campbell’s edition of Finlay’s History of Kentucky, 1793.” This engraving hears the title, “A plan of the Eapids of the Ohio.” On it is indicated the location of a proposed canal around these obstructions, and there is a note which reads, “From A to B a canal is intended to be cut.” The point A is placed just inside of the mouth of Bear- grass Creek, and B just around the turn in the Kentucky shore below the present mills of the Louisville Cement Company. The canal is drawn running parallel to and but a short dis- tance inside of the Kentucky shore line. 5342 It seems, then, even at that early date the question of con- structing a canal around these obstructions was agitated. I have not, however, been able to discover any records of such agitation earlier than 1802. Beginning in that year, various plans were from time to time suggested and attempted to be carried out, by individuals, associations, appeals to Congress, and incorporated companies, but without success. The Legislature of Kentucky being impressed with the im- portance of the subject, and finding the General Government disinclined to prosecute the work, in 1825 granted a charter to a stock company, authorizing them to construct a canal around the Falls of the Ohio within the State of Kentucky. The act granting this charter was approved January 12, 1825, and fixed the time of completion of the canal at three years from that date. It becoming apparent that the company would not be able to complete the work in that time, the latter was extended by three subsequent acts to February 6, 1831. The capital stock of the company was fixed at $600,000 by the original charter. This was enlarged by two subsequent acts, and finally fixed at $1,000,000. By the acts of Congress approved May 13, 1826, and March 2, 1829, the Government 5343 became the owner of 2,335 of the 10,000 shares of stock in the company for which it paid the par value, $233,500. Both of these acts of Congress provided that the Secretary of the Treasury should vote for president and directors of the com- pany according to the number of shares owned by the Govern- ment, and should receive upon this stock the proportion of the tolls which should, from time to time, be due to the United States for the shares aforesaid. Thus, the Government, for the first time in its history, I be- lieve, became a stockholder in a private corporation chartered by a State, and that, too, in one whose object was to over- come obstructions to navigation in a national highway. The company had great difficulties to encounter in raising money and otherwise, but the work was prosecuted with en- ergy, and the canal was opened and the first boat passed 1622 Falls of the Ohio, — Eng. Rep. 1882. — Continued. through it on December 22, 1830, although many improvements on it weer subsequently made. As originally constructed, it was 1.9 miles long, 64 feet wide, and had three combined lift locks at its lower end, each chamber having an available length of about 185 feet, and a length between miters of about 198 feet, a width of 50 feet, and a lift of about 8 feet 5^ inchs. The total cost of the work was $1,019.09. This includes the pur chase of land. 5344 When the canal was completed its dimensions were thought to be sufficient for all time, but in a little over twenty years (in 1852) only fifty-seven one-hundredths of the tonnage en- gaged in the Western rivers could pass through the locks. P. 1886 : In the meantime the government had ordered three surveys of the Falls of the Ohio. These were made in 1843, 1845 and 1853, by Captain Cram, Corps of Topographical Engineers; Lieutenant Colonel Long, Corps of Topographical Engineers, and a board composed of Lieutenant Colonel Long and Col. William Turnbull, of the Corps of Topographical Engineers, and Mr. Charles B. Fisk, respectively. No action, however, was taken upon their report. They consisted in widening the waterway from 64 to 100 feet, by removing 36 feet from the south side, and lining both sides with a vertical dry wall, 17 feet high, in fixing the depth 5345 of water in the canal at the lowest stage to be 6 feet over ‘Lniter sill and all,^’ in removing the abrupt angle in the old canal and substituting a regular easy curve, in providing three passing places, in constructing a guard-gate at the head, in constructing a dam or crib protection of timber and stone, about 600 feet long, extending eastwardly from the head of the canal, and removing all the projecting points of rock inside of it to protect boats passing in and out of the canal from acci- dent or delay, by being carried with the strong current that sets out over the falls against the ledge of rocks, and in pro- viding a floating boom at the head of the canal to exclude ice and drift; the new locks to be placed 1,500 feet below the old locks and be connected with the old canal by a branch 2,600 feet long, the locks to be two combined, each having a lift of 13 feet, and the rock-s at the foot of the canal to be blasted and removed to open a wide and safe channel for going in and out of the canal. To save expense it was subsequently concluded to reduce the width of waterway to 90 feet. 5346 Page 1887 : At the next session of Congress a ‘‘joint resolution provid- ' ing for the necessary surveys for a ship-canal around the 1623 Falls of the Ohio River, for military, naval and commercial • purposes, was passed. It was approved March 29, 1867. It authorized and directed the Secretary of War to cause sur- veys, with plans and estimates of cost, to be made by an officer of Engineers, for a ship-canal around the Falls of the Ohio River, on the Indiana side thereof, of suitable location and dimensions, for military, naval, and commercial purposes, and also to cause said officer to estimate the expense of completing the Louisville and Portland Canal, on the Kentucky side of said falls, according to the plan on which the said canal com- pany was then progressing with said work. I was assigned to this duty and began the survey in July, 1867. My report on it is dated February 8, 1868, and may be found in the report of the Chief of Engineers for the year 1868, beginning on page 528. The bonded indebtedness of the company at this time was $1,567,000, payable in almost equal amounts in 1871, 1876, 1881 and 1886, and bearing 6 per cent, (currency) interest, payable semi-annually. In my report of the survey I recommended for the reasons given, not only the immediate enlargement of the Louisville and Portland Canal, but also the immediate construction of a 5347 new canal on a proper route on the Indiana side, with a width of 120 feet and new locks 100 by 400 feet. I believed then, and do now, that the radical improvement of these ob- structions demanded both, and that the commerce of Ihe Ohio River was entitled to the most generous treatment at this lo- cality. In order to reduce the expense of rock excavation, and the delay attending it on the two works, and believing that with these two canals constructed it would be unnecessary to risk the dangers of navigating the falls, which were just being in- creased by the construction of the piers for a railroad bridge, I recommended the construction of two low-water dams; one of these across the river at the crest of the falls and the other below New Albany. ^ The latter was afterward changed to the head of Sand Island to give more water in the Kentucky chan- nel, and thus obtain the necessary depth there without expen- sive under-water rock excavation. Page 1888: I still further reduced the width of the canal to about 85 feet for the sake of economy. It is now really 86^ feet wide. I built a high-water channel in the river through the outer half of the draw in the railroad bridge, for the accominda- tion of boats when the river was so high that they could 5348 not pass under the bridge through the wide span without lowering their chimneys, and I made the apron or crib dam 1624 at the head of the canal 1,800 instead of 600 feet long, and raised it very considerably. 5349 Counsel for complainant read in evidence from report of the Chief of Engineers, for 1876, part 2, the passages of pages 201, 205, 206 ; the map between pages 206 and 207 ; the pas- sage on page 212, and the profile map between pages 296 and 297, as follows: We insert here other extracts from the same report, to-wit: Pages 204, 206, 207 and 234-9 inclusive, which extracts were read in evidence and appear on page 3537 to page 3553 Cer- tificate of Evidence. For convenience we have arranged the two extracts according to the jDages of the Eeport of Engineers. 5350 Page 201: A very interesting natural feature is presented by the courses of the AYisconsin and Fox Eivers. They flow towards each other to within 14 miles of meeting, and then, turning in opposite directions (although separated only by a low plain, across which their floods intermingle), the waters of the one pursue a southerly course to the distant Gulf of Mexico, and those of the other a northerly direction to the equally re- mote ocean- receptacle, the Gulf of Saint Lawrence. Each of these termini was a region beyond the bounds of the knowl- edge of the aboriginals on the banks of the two rivers. Page 205: Eeport of Major Long, United States Army, 1817 and 1819. The AVisconsin Eiver was visited by Maj. S. H. Long, United States Topographical Engineers, in 1817, and again in 1823, and he thus describes it : ‘ ‘ The MTsconsin Eiver, from its magnitude and importance, deserves a high rank among the tributaries of the Mississippi. MTien swollen by a freshet, it affords an easy navigation for boats of considerable burden through a distance of more than 180 miles. Its current is rapid, and like the Mississippi, it embosoms innumerable islands. In a low stage of water its navigation is obstructed by numerous shoals and sand-banks. 5351 At the distance from its mouth above mentioned’^ (too great an estimate by 60 miles) ‘‘there is a portage of one mile and a half, across a flat meadow, which is occasionally subject to inundation, to a branch of Fox Eiver of Green Bay, thus af- fording another navigable communication which boats have been known to pass. The valley of the MTsconsin is some- 1G25 what narrower than those of most other rivers of this region, but in some respects is very similar to them. The high coun- try here assumes a more hilly and broken aspect, and the soil becomes more sandy and meager.’’ (See Long’s Expedition to the Source of the Saint Peter’s Kiver, Vol. 2, Chapter V.) * * * * m * * * * ' * Page 206: In 1819 the Fifth Regiment of the United States Infantry made the voyage from Fort Howard, near Green Bay, to Prairie du Chien, via the Fox and Wisconsin Rivers, and Capt. Henry Whiting, of that regiment, prepared a map of the route on a scale of an inch to 4 miles, with numerous marginal notes. From these the following description is compiled: Fort Howard is on the left bank of the lower Fox River, about 2 miles from its mouth ; about 3 miles above are rapids and a mill, and between these and the fort was a French set- tlement, occupyins- both banks of the river, and numbering about sixty families. From the rapids at the mills to the Grand Chute the current is generally so rapid as to render a tow-line and setting-poles necessary, and the boats are for 5352 the most part moved up in that way. In this space were passed, first, the Little Kakalin Rapids, one-quarter of a mile in length, easily surmounted with setting poles and oars ; sec- ond, the Great Kakalin Rapids, one mile in length, very broken and violent, where the boats are unloaded, and the baggage transported 1,000 yards by land; third. La Petite Chute, a ledge stretching across the river, making a descent of about 12 inches; fourth. La Crosse Roche, which makes a perpen- dicular fall of about 2 feet. Both of these two last-men- tioned are surmounted with loaded boats. At La Grande Chute there is a perpendicular fall of about 4 feet all across the river, and the boats have to unload and the baggage is transported 500 yards. Above the Grande Chute and below Lake Winnebago there are two or three incon- siderable rapids which are surmounted without much diffi- culty or delay. The Fox River thence to the portage has always a strong current and is often entirely overgrown with grass and wild rice, but presents no other impediments. It winds through a and narrow prairie borders by oak openings, and undulating lands, generally of a beautiful appearance, but probably not remarkably rich in their soil, which, wherever the river washes them, seems to be a sandy, reddish loam. The portage between the Fox and Wisconsin Rivers is about 2,500 yards; the road runs over a marshy prairie. There is 5353 a Frenchman residing on the rising ground between the rivers. He keeps the proper transportation for boats and baggage. 1626 Loughs Rep. — Eng. Rep. 1876. — Continued. Said maps accompanying said report were received in evidence (Atlas, pp. 3994-3995; Trans., pp. 6725-27; Abst., pp. 1942-47), and a copy of each of said maps are shown in abstract, pp. 1942, 1947. 5354 Page 212 : For convenience of reference in the report of operations fol- lowing, I will give now a correct list of the several rapids, with their distance apart, and the fall at each as it was ascer- tained at the time of the examination made by Major Suter, in 1866. It is as well to note here that the map published with our report gives two locations of Eapids Croche; the upper one is the location of the dam, the other is a mistake. List of rapids on Lower Fox Eiver, with amount of fall and distances apart between head of each. Fall. Distance apart. Name Feet ’Miles Depere 8 0 Little Kaukana (or Kakalin) 8 6 Eapide Croche 8 6 Grand Kaukana 50 44 Little Chute 38 24 Cedar Eapid 10 Of Grand Chute 38 4 Mhnnebago Eapid 10 4f Green Bay to Lake AVinnebago 170 28 5355 Counsel for complainant read in evidence with reference to the Tennessee Eiver, more especially Muscle Shoals, in the Tennessee Eiver, the annual report of the Chief of Engineers of the United States Army for the year 1872, under date of March 23, 1872, pages 495, 497, 512 and 513, and page 514, as follows: Tennessee Eiver — Muscle Shoals. U. S. Engineer’s Eeport for 1872. 5356 ‘M have the honor to transmit my report upon the re- survey of the Tennessee Eiver from Brown’s Ferry, Ala- bama, to Florence, Alabama, made under your instructions, and in compliance with the act of Congress approved Febru- ary, 1871, relating to surveys. That portion of the Tennessee Eiver covered by this survey is commonly known as the Muscle Shoals, although three dis- tinct series of shoals, separated by deep water, are included within its limits, viz. : Elk Eiver Shoals, beginning two and one-half miles below 1627 Brown’s Ferry, and extending to the mouth of the Elk River, eight miles and one-half, with a fall of 21 feet. Big Muscle Shoals, beginning six miles and one-quarter be- low Elk River, and extending to Bainbridge (formerly known as Campbell’s) Ferry, fourteen miles and one-half, with a fall of 82 feet. It is around this shoal that a canal was constructed in 1832- ’37. Little Muscle Shoals, beginning one mile and one-quarter below the foot of Big Muscle Shoals, and extending to Flor^ ence, Alabama, five miles and one-third, with a fall of 22 feet. Between the foot of Elk River Shoals and the head of Big Muscle Shoals lies the deep water of Lamb’s Ferry pool or eddy, six miles and one-quarter in length, with a fall of 5.4 5357 feet and a depth varying from 8 feet to an unknown amount over 12 feet, and with one rocky bar about one mile and three-quarters below the mouth of Elk River. At the foot of Big Muscle Shoals, and between that and the head of Little Muscle Shoals, lies the deep water of Bain- bridge, or Campbell’s Ferry pool or eddy, one mile and one- quarter in length, with a fall of two feet, and a depth varying from 8 to 57 feet. The whole distance and fall, then, from Brown’s Ferry to Florence, is as follows, viz: Distance Fall Miles. Feet. From Brown’s Ferry to head of Elk River Shoals (deep) 2.6 1.7 Elk River Shoals 8.6 21.1 Lamb’s Ferry pool (deep) 6.3 5.4 Big Muscle Shoals 14.4 82.1 Campbell’s, or Bainbridge, Ferry pool (deep) 1.25 1.9 Little Muscle Shoals 5.35 22.0 Total 38.5 134.2 The object of the survey was to ascertain what means could be found for passing these obstructions and uniting the two dissevered branches of the Tennessee, which for two hun- 5358 dred and sixty miles below and two hundred miles above is navigable for the largest class of western river steamers, while smaller steamers are able to pass two hundred miles still further up the stream. * * * As stated in the earlier pages of this report, the Tennessee is navigable from Florence, Alabama, to Paducah, Kentucky, at its mouth, two hundred and sixty miles distant, by the largest class of western river steamers (the obstacles at Col- 1628 Muscle Shoals, Tenn. R. — Eng, Rep. 1872. — Continued. bert Shoals being nearly removed), while the same may be said of that portion of the river lying between Muscle Shoals and Chattanooga, two hundred miles in length. During the high- water season the river rises at Chattanooga 40 feet; at Brown’s Ferry, 12 feet; on the big Muscle Shoals, from 4 to 5 feet; and about twice as much on Little Muscle Shoals; at Florence, 20 feet; and at Waterlook twenty-eight miles below Florence, 30 feet. This rise enables large vessels to pass up to Knoxville, two hundred miles above Chattanooga, 5359 and renders the Little Tennessee, the Holston, and the French Broad navigable for smaller steamers for some distance farther. 5360 Tennessee Division. — From Paducah, Kentucky, at the mouth of the Tennessee, up that river to Florence, Alabama, at the foot of Muscle Shoals; distance, two hundred and fifty- five miles. Coast Survey measurement. The greater portion of this division furnishes depth enough for the passage of any boat that floats on the western waters, but scattered along the line are numerous reefs and bars on which, during the season of lowest water, less than 3 feet water is to be had, while the channel-ways of many others, though sufficiently deep at low water, are so crooked and narrow that it would be impossible for tows to pass them, and, there- fore, need to be improved before they can be used for the purpose now under discussion. The most serious of these obstructions is the group of reefs and bars known as Colbert Shoals, about seventeen miles below Florence, Alabama, which, next to the Muscle Shoals, constitute the most serious object to be met with on the whole line of the river. In the same vicinity are the obstructions at Seven Mile Island and Buck Island, a few miles above Colbert Shoals, and those at Bee Tree Island, a few miles below Colbert Shoals. The water at these obstructions, during the lowest stage of the river, is from 12 to 20 inches in depth, and all com- munication by boat, between Florence and the lower river, is 5361 cut-off, steamers being unable to ascend beyond Eastport and Waterloo, about thirty miles below Florence. Attempts have been made, within the past four years, under Congres- sional appropriations, to improve the river at these points so that 3 feet water might be carried over them at the low- est stage; but the incompetence of the contractor who had undertaken the work has, so far, prevented the accomplish- ment of this design. It is hoped, however, that the balance yet unexpended will enable us to get the desired depth before the beginning of the low- water season of 1872. To secure 5 feet depth of water over this obstacle during the remainder of the 1629 year may require the construction of a short section of canal with a lock, the cost of which cannot be determined without a minute survey, but which may be set down at not less than $300,000. Descending the river, we find that improvements of some kind or other — removing rock or gravel, or constructing wing- dams, in order to straighten or widen the channels, or to give them sufficient depth — will be required at the following points, viz: Bear Creek Shoals, Indian Creek, Big Bend Shoals. Diamond Island, Wolf Island, Chalk Bluff, Beech Creek Shoals, Buffalo Shoals, Armstrong’s Tow-head Bridge, at Johnsonville, Duck River Shoals and Suck, Turkey Island Shoals, White Oak Island, Harrican Island, Leatherwood 53'62 Shoals, Sandy Island, Panther Creek Island, McCullough’s Bar, Blood River Island, Pentecost Tow-head, Widow Rey- nold’s Bar, Grubb’s Tow-head, Little Chain, and Grand Chain. At most of these ])oints but a small amount of work would be required to make the low-water channel sufficiently broad and deep. As an accurate estimate cannot be e:iven with- out an accurate survey, I have roughly fixed the probable aver- age cost of improving these points at $5,000 each, except Big Bend Shoals, which, being over three miles in length, will cost a large amount. This and Duck River Shoals are the two most troublesome points below Colbert Shoals. During the greater portion of the year 3 feet water may be carried over either, but during the low-water season they have been known to have as little as 22 inches over them, though it seldom falls below 30 inches. The entire cost of securing 3 feet depth over the whole distance during the low-water season, and 5 feet depth during the ordinary stage of water, may be set down as not less than $500,000. Most of these obstructions are not such as to materially interfere with the passage of the small steamers now employed on the Tennessee, but they would become serious obstacles to tows, which, in the event of the opening of this route, would constantly pass up and down the river; for, to admit of the 5363 passage and easy management of a steamer, with a barge on each side of her, the channel- ways would all have to be straightened and widened to not less than 150 feet. Muscle Shoals Division . — Extending from Florence, Ala- bama, up the Tennessee, passing Little Muscle Shoals, Big Muscle Shoals, and Elk River Shoals, to Brown’s Perry, Ala- bama, a distance of thirty-eight miles by survey, which would have to be passed entirely by canal; and, for reasons stated in an earlier part of this report this canal should be con- structed for the passage not only of such boats as may be designed to pass over the remaining portions of the route, but 1630 also for the largest steamers ever likely to be employed in the Tennessee Eiver trade. The dimensions proposed for this canal were as follows, viz : 100 feet wide at water-surface and 6 feet deep ; lock-chambers, 60 feet wide by 300 feet between miter-sills ; and its estimated cost was $3,676,000. For fuller details see my report, a copy of which is appended hereto. Alabama Division , — Extending from Brown’s Ferry, at the head of Muscle Shoals, up the Tennessee to the mouth of 5364 Short Creek, two miles and a half above Guntersville, Ala- bama, distance seventy-five miles by steamboat measurement. This portion of the river is broad, straight, and almost free from obstructions, with abundant water except at Gunter’s Bar, Gunter’s Eeef, Flint Eiver, Tow-head, Wliitesburgh- Shoals and Eeefs, and Limestone Shoals, where, during the lowest stage of the river, the depth of water varies from 10 to 20 inches.” 5365 Counsel for complainant otfered in evidence, in the report of 1895, pages 2410, 2411, 2412, and the profile and map be- tween pages 2416 and 2417. (Atlas, p. 3996; Trans., p. 6729; Abst., p. 1951.) (Objected to; sustained.) 5366 Said extracts from said report so excluded are as fol- lows : 5367 ^‘Dam at Heer Island, Allegheny Eiver, Near Pittsburg, Pennsylvania. The object of this dam is to begin a system of slack- water navigation on the Allegheny Eiver and enlarge the harbor room at Pittsburg to the extent of the pool formed by the dam. The original project was for a fixed dam, but in compliance with the request of the authorities of Pittsburg and Allegheny City, the Secretary of War has ordered that the dam at Herr Island be made a movable one. This change in design neces- sitated a corresponding change in the estimated cost of the work. The estimated cost of the work under the plans ap* proved July 10, 1894, is $600,000.” * * * # * # * * ‘‘During the past fiscal year, the plans for this work were approved July 10, 1894, and the pumping out of the coffer-dam commenced July 7, 1894. The result is shown in the following extract from the project submitted under modified plan of August 27, 1894:” ********** “There are some important advantages resulting from this 1631 type of foundation. The uncertainties of sheet piling are re- placed by the known qualities of masonry, resting upon a foundation bed that is open to inspection. In the first design, 5368 the expensive concrete floor has been minimized in thickness so as to produce a rupturing strain under possible conditions of navigation, and to prevent the pumping out of the lock chamber while the Herr Island Dam is up. With the present design there is no rupturing strain on the floor, and the lock chamber can be pumped out at any stage of water that the lock walls will keep out.” Said map accompanying said extracts was also excluded (Atlas p. 3996; Trans., p. 6729; Abst., p. 1951). 5370 Thereupon counsel for defendant read in evidence extracts from the report of the Chief of Engineers for 1876, part 2, as a supplement to the part theretofore read by counsel for com- plainant upon pages 204, 206, 207, 209 and 234 to 239. 5371 Page 204: ‘^The river” (says Marquette) ‘‘on which we embarked is called Meskousing,” (Wisconsin). “It is very broad, with a sandy bottom, forming many shallows, which render naviga- tion very difficult. It is full of vine-clad islets. On the banks appear fertile lands diversified with wood, prairie and hill. Here you find oaks, walnut, whitewood, and another kind of tree with branches armed with long thorns. We saw no small game or fish, but deer and moose in considerable numbers.” 5371 Page 206-7 : The limestone bluffs and highlands begin on the Wiscon- sin about 8 miles below the portage. Just above Prairie du Sac appears to be the apex of the highland of the Wisconsin and the head of the great valley through which that river winds. The river is full of islands, formed by the sand-bars, which are constantly increasing in number. The general depth of the river is, at the ordinary height of the water, 4 to 5 feet, but the sand-bars often extend entirely across the river, and have not more than 8 or 10 inches of water; the sands, however, are quick, and oppose but little resistance. 5372 Page 209 : The Wisconsin may be rendered navigable by the removal of the timber from its banks where it overhangs the channel, and occasionally contracting its waters by closing the heads of the sluices or shallow channels around the islands. * * * Its general width is about a. mile; these improvements, there- fore, will permit the steamboats which navigate the Upper 1632 Fox and Wisconsin Rivers, — V. S. Eng. Rep. 1876. — Con. Mississippi to ascend this river to the Great Bend nearest to Lake Michigan. 5372 Pages 234-9 : The Lower Fox forms the outlet of Lake Winnebago, a body of water 35 miles long, from 9 to 14 miles wide, with depths varying in the deepest parts from 12 to 25 feet. Over the 154 miles of lake navigation, between the Upper and Lower Fox Eivers, there is a depth of over 20 feet. This lake is a great reservoir, and prevents any sudden changes in the vol- ume of the outlet from freshets — the extreme fluctuations in the Lower Fox not exceeding 3 to 4 feet. The level of the lake does not reach more than 34 feet above the ordinary level maintained by the dams at the outlets, but it is occasionally drawn down by the water-power mills nearly 24 feet below this level. The total fall from Lake Winnebago to Green Bay is about 170 feet, and the distance 374 miles. The minimum volmne of the Lower Fox is given by Mr. Westbrook at 2,320 cubic feet per second. 5373 The following table is made up from the figures of Major Suter’s report, as modified by me in arrangement in the foregoing abstract : Table ix Eegaed to the Lower Fox Eiver ix the Autumx of 1867. Inter- mediate Place. Distance. Distance from mouth of river. Number of locks. Elevation overcome. Depere, dam Miles. 7 Miles. 7 1 Feet. 8 Little Kaukana, dam 6 13 1 8 Eapid Croche, dam 6 19 1 8 Grand Kaukana, dam 44 234 5 50 Little Chute, dam 24 26 4 38 Cedars, dam Appleton, lower dam o| 26f 1 10 3 29f 1 84 Appleton, upper dam Of 304 3 294 Menasha, dam 5 354 1 10 ■ Lake Winnebago 2 374 Total 37i 18 170 (Continued next page.) 1G33 5374 Table in Regard to the Lower Fox River in the Autumn of 1867. (Concluded.) Cost of making navigation from one dam to next above. For 4 feet For 6 feet Height draught. draught. above locks locks Place. Green B ay. 160 X 35. 220 X 35. Feet. Depere, dam 8 $45,000.00 $83,300.00 Little Kaukana, dam 16 3,000.00 27,730.00 Rapide Croche, dam 24 4,000.00 41,000.00 Grand Kaukana, dam 74 22,800.00 111,670.00 Little Chute, dam 112 17,530.00 77,200.00 Cedars, dam 122 3,930.00 23,400.00 Appleton, lower dam 1304 11,000.00 Appleton, upper dam 160 18,870.00 63,870.00 Menasha, dam 170 13,270.00 54,200.00 Lake Winnebago 170 Total $118,400.00 $493,370.00 5375 Condition of the Upper Fox River and improvement in 1866. — The present traveled route between Oshkosh and Fort Win- nebago is 104 miles, the air-line being 54 miles. As near as can be estimated, there have been 18,000 feet of cut-off by dredging making a saving of about three-fifths of the dis- tance. The total fall is about 33-1/10 feet. In most places there is a fall of a foot in 2| miles, but there are long reaches where the fall is scarcely perceptible. Several lakes occur on the course of the river, which are generally shallow and full of wild rice. The mouth of the Fox River at Oshkosh is very deep; the channel has upward of 20 feet of water, which continues along the whole river-front of the town; thence to Lake Buttes des Morts, and through that lake there is over 12 feet of water; the river is broad and deep, with no perceptible current. About 10 miles from Oshkosh the Fox is .-joined by the Wolf River, a stream of nearly its own size. This river is navigable for about 50 miles; it penetrates into the lumber regions in the northern part of the State, and a great quantity of logs and sawed lumber is floated down the river to Osh- kosh. After passing the mouth of Wolf River 6 feet is the least depth until we reach Omro Bar, half a mile below the town of that name; thence to the town, 44 feet of water. This portion of the river is quite crooked, but this is of no great 1634 Fox and Wisconsin Rivers, — IJ. S. Eng. Rep. 1876. — Con. / 5376 importance to small vessels, on account of the depth of the water. Two miles below Omro a cut about a mile long, carry- ing the waters of the Fox straight to Lake Buttes des Morts, would save 7 or 8 miles of distance. From Omro to Delhi there is about 5 feet of water; never less, except in small spots. Above Delhi there is the same depth to Eureka Bar. From here to the town of Eureka 14 miles, there is only from 4 to 4^ feet, with occasional deep spots. In front of the town there is 6 feet of water. At Eureka there is a perma- nent bridge, the only one between Berlin and Oshkosh. There are several floating bridges, however, where country roads cross the river. From Eureka to Sacramento there is an aver- age depth of 6 feet. The river is quite narrow. Above Sacramento there is an average depth of 5 feet half-way to Berlin ; then from 4 to 4J feet as far as a floating bridge three-quarters of a mile below Berlin. Above this bridge, and also in front of the town of Berlin, there is about 5 feet of water. Between Sacramento and Berlin there is not much marsh along the river, and the banks are generally high. Above Berlin, the average depth is from 5 feet to 6 feet for 8 miles. At this point there is a short bar on which the water is only 34 feet deep. The average depth above here is from 5 feet to 6 feet, until the mouth of the Puckeyan 5377 Eiver is reached. Just above the mouth of this stream is a short bar with 34 feet of water. At the lower end of Willow Bend is another short bar with 34 feet of water. At the mouth of White River is a bad bar 300 yards long, and hav- ing only 3 feet of water on it. In the west side of the first bend above White River is a flat bar caused by a sudden widening of the stream. It is 200 yards long, and has 3^ feet of water on it. (The lowermost wing-dam is about 2 miles below State Centre.) There is a bar below this lower wing-dam with 3 feet of water. Above this wing-dam there is from 34 to 44 feet of water ; usually 4 feet and often more. The banks of the stream from Berlin to the lower wing-dam are generally low and marshy, but above this point they are quite high, and continue so to the mouth of the Meehan River. There is a second wing-dam at State Centre. At Saint Mary are the ruins of a bridge. From Saint Mary to Princeton the river is quite shoal. The average depth is 4 feet, but on the bars there is less than 3 feet. There are two more wing- dams at Princeton. There is also at this point a good, per- manent bridge across the Fox. Between Princeton and the mouth of Meehan River there are three wing-dams. In this portion of the river the water 5378 is quite shoal, not more than 3 feet deep. From Omro to the mouth of Meehan River the fall is about 1 foot in 24 miles, and there is quite a strong current. Above Meehan there is slack-water to Lake Puckaway. The river is very wide, 1635 with 6 feet or 8 feet depth of water or more. Within the Big Bend, above Princeton, the ground is cjnite high, a])Out 30 feet above tlie level of the river. If a canal could be cut through here about 10 miles would be saved, as the neck is only a mile wide. Lake Puckaway is a sheet of water 8] miles long and from 1 to 2 miles wide. The lower end of the lake is very shallow and full of reeds and wild rice. A channel, running north- east from Marcpiette, has been cut through for steamers. It is from 3 feet to 31 feet deep. A channel, having 4 feet of water, leads along the eastern shore of the lake. The bottom of the lake is very soft, black mud, through which a channel of any depth can be easily dredged. For about a mile to the west- ward of Marquette the lake is tilled with rushes. A channel exists, however, which has about 4^ feet of water. After get- ting out of the rushes, there is from 5 feet to 6 feet of water to the end of the lake. At the mouth of the Fox, that is, where it enters Lake 5379 Puckaway, there is a bar half a mile long, where there is only from 3 feet to 31 feet of water; above this there is 5 feet or 6 feet for about 3 miles. Just below the large bend there is about 44 feet; then for a mile from 6 feet to 7 feet. The rest of the way to Montello the river is shallow. Three and a half feet is the average depth, and 3 feet is the least. There are a good many sand-banks just below Montello which wash into the stream and cause bad bars. The current between the lakes is quite rapid. At Montello, a lock and dam are being constructed to raise the water above Lake Buffalo. As shown by the ])lan, it is designed to cut the canal through into a bayou, which has a depth of about 7 feet. The Montello River has also been turned into this bayou. The dimensions of the lock, dam, and canal when finished will be as follows: Dam, 151 feet long; canal, 650 feet long and 90 feet wide; lock-lift, 3 feet; depth on lower miter-sill, between 8 feet and 9 feet; height of lock, 15 feet; length, 160 feet; width, 35 feet; composite lock, with head-walls of ma- sonry. Above the mouth of Montello River there is from 4 to 4-J feet of water as far as the lower end of Lake Buffalo. Lake Buffalo is a large rice-field, about 134 miles long and half a 5380 mile wide. The Fox crosses it in a very tortuous but deep channel. After entering the lake there is from 6 feet to 9 feet as far as Packwaukee, and even as deep as 15 feet. This is a pile-bridge across the lake at Packwaukee. From Pack- waukee a good channel leads to the end of Buffalo Lake. The water runs from 7 feet to 9 feet in depth. Between Lake Buf- falo and Lake Menomin there is a channel of about the same depth, and also through Lake Menomin. This channel is ex- 1636 Fox and Wisconsin Rivers, — U. S. Eng. Rep. 1876. — Con. ceedingly crooked. Lake Menomin is a large wild rice-field like Lake Buffalo. It is 1^ miles long by half a mile wide. After leaving this lake, and especially after passing Mer- ritt’s Landing, just above Moundville, a series of small, but bad, bars are met with. They are caused by the washing of a high sand-bluff on the river-bank. These bars have barely 3 feet of water on them. The worst of them could be avoided by a cut-off. In the last mile below Eoslyn the channel is as a general rule quite deep— from 6 to 8 feet; but shoal spots occur, where only 4^ feet is to be found. The channel is ex- ceedingly crooked and narrow. A great many cut-offs should be made in this portion of the river. From Eoslyn to the first cut-off there is from 54 to 7 feet of water. Just below this cut-off is a short bar with only 3 feet of water. In the cut itself there is about 4 feet. Above 5381 the cut is another bar with 3 feet depth. This first cut-off is only about 40 feet long; but it saves nearly a mile of dis- tance. From the first to the second cut-off the depth is about 44 feet. In the cut-off there is a bar with about 3 feet of water. The rest of the cut has a depth of about 44 feet. From the second to the long cut-off there is from 6 to 9 feet of water. At the lower end of the long cut-off there is 5 feet of water; at the middle, 4 feet; at the upper end, 3 feet, with a short bar having from 2 feet 8 inches to 3 feet. From the end of the cut-off to Governor’s Bend lock there is about 5 feet of water. Between Governor’s Bend lock and Eoslyn the stream is very crooked, and several long cut-offs should be made. The cut-off just below Governor’s Bend is about a mile long, and saves about 3 miles. Governor’s Bend lock, dam about 4 feet high and 60 feet long. Canal, 570 feet long and 57 feet wide. Lock, composite; lift 4 feet; depth on lower miter-sill, 5 feet 6 inches; height, 15 feet; length, 160 feet; width, 35 feet; new and in good order. From this lock to Winnebago lock there is slack-water. The channel leads almost entirely through cut-offs, and is quite free from sharp bends. The width of these cut-offs is about 60 feet. The depth will average 44 feet to within a mile of Winnebago lock. In this last distance the channel is full of sand-bars. The water 5382 gradually shoals from 44 feet to 24 feet. At the foot of Winnebago lock there is 8 feet of water. At Winnebago lock the lift is 7 feet; depth on lower miter- sill, 6 feet 1 inch; height, 17 feet; length, 160 feet; width, 35 feet. Composite lock with masonry head-walls; all in good order. The canal which connects the Fox and Wisconsin Eivers is quite shoal. At the lower end it is 5 feet deep for about 200 feet; then 3 feet deep to within 500 feet of the first rail- road-bridge; then 24 feet deep to the second railroad-bridge; then 2 feet deep to the town of Portage. At the upper or 1637 Wisconsin end it is about 18 inches deep. The mill at the lower end draws the water down about 1 foot. At the upper end of the canal is a guard-lock, which is used as a lift-lock when the Wisconsin is high. It is in a very dilapidated con- dition, and should be rebuilt. It is 21 miles (12,400 feet) in length, and 75 feet in width. It is cut through a flat, sandy plain which separates the waters of the Fox from those of the Wisconsin. The Fox Fiver is about 5 feet lower than the Wisconsin in ordinary stage of water. During high water the Wisconsin overflows this neck of low ground at Portage, and also 5 or 6 miles above, and a large portion of its waters are thus diverted to Green Bay. The spring rise in the Fox 5383 is principally owing to this cause, for the Fox itself fluc- tuates very little. About 7 miles below Portage a stream called Big Slough comes into the Pox. During high water this connects with the Wisconsin and becomes a very consider- able stream, bringing a large volume of water into the Pox. In fact, the greater part of the low country between the two rivers is overflowed by the Wisconsin at this time. It will be seen that the canal is not straight, but makes a considerable bend to the westward. The object of this was to place the mouth of the canal on the Wisconsin side, above an island. It was afterward proposed to give it a different direction, but the idea has never been carried out. At present the main bulk of tlie Wisconsin runs through the inshore channel, and the whole of it can be diverted through there if desirable. It is also much easier to protect in the mouth of the canal in the proposed position than in the one it occupies at present. But the change is not a matter of any great importance. The canal at present is almost filled up with sand, but it is being dredged out. The only plan of improvement of the Upper Fox River which gives promise of permanency is to create slack-water navigation throughout the whole length of the stream by means of locks and dams. As a great deal of valuable prop- 5384 erty would be overflowed and ruined by putting in high dams and locks of great lift, it appears preferable to use low dams, say 3 feet high, and then lower the bed of the stream above and below the dam by dredging sufficiently to destroy the current. Further dredging will give the requisite depth for navigation, and the channel thus made will remain perma- nent. Three locks appear necessary between the mouth of Meehan River and Omro. Above the former and below the latter point there is slack-water already, or will be when certain improvements in progress are finished; notably the Montello lock and dam. The total fall between Meehan River and a point 14 miles above Eureka is 12.87 feet, which it is proposed to distribute 1638 Fox and Wisconsin Rivers, — U. 8. Eng. Rep. 1876. — Con. as follows; one lock at Princeton, 4 feet lift; one lock at Fiddler’s Bend, 4 feet lift; and one lock 14 miles above Eu- reka, 5 feet lift. Ten feet of this total lift is included in the 12.87 feet, the remainder of that sum being allowed for backwater and flow-^ age. Details from Winnebago lock to Governor’s Bend lock; dis- tance, 54 miles; fall not accurately known, as the bed of the stream has been much lowered by dredging since the last survey was made. The lock has about 4 feet lift, so that 5385 the fall is probably between 4 and 5 feet. Slack-water ex- ists above Governor’s Bend dam. Governor’s Bend lock to Montello lock; distance 21 miles; fall, 5.95 feet, as nearly as can be computed. This is thought to be too much. The Montello dam is to raise the water 3 feet, and it is proposed to lower the bed below Governor’s Bend lock 1 foot by dredging. This will, it is hoped, give slackwater back to Governor’s Bend lock; but, in case it does not, the Montello dam can be raised 1 foot more. It will ])robably be necessary to lower the bed of Governor’s Bend lock 2 feet to enable a vessel drawing 6 feet of water to get through it; but this cannot be stated positively until a new set of levels has been run to ascertain the exact amount. The Montello dam can be raised, if necessary, without overflowing a great extent of country. From Montello lock to head of Lake Puckaway: distance, 7 miles; fall, 4.93 feet. Bed of stream to be lowered 4 feet by dredging below the Montello lock, leaving .93 foot fall in 7 miles, or about .13 foot to the mile. From the head of Lake Puckaway to the mouth of Meehan River there is slack- water. Prom mouth of Meehan River to Princeton lock: distance, 5J miles; fall, 2.57 feet. "Water to be raised 2 feet by a dam, and lowered below the darn 2 feet by dredging. Lock, 4 feet lift; flowage, .57 foot. 5386 Princeton lock to Fiddler’s Bend lock: distance, 12 miles; fall from foot of Princeton lock, 2.92 feet. 4Yater to be raised 2 feet by the dam, and lowered 2 feet below the dam by dredging. Lock, 4 feet lift; flowage, .92 foot. Fiddler’s Bend lock to Eureka lock: distance, 154 miles; fall from foot of Fiddler’s Bend lock, 3.38 feet. "Water to be raised 2 feet by a dam, and lowered below the dam 3 feet by dredging. Lock, 5 feet lift; flowage, 1.38 feet. From Eureka lock to Oshkosh: distance, 24 miles; fall, 5.80 feet. Water to be lowered 3 feet at upper end of level by dredging, as stated for Eureka lock. This will reduce the fall 2.80 feet in 24 miles, or a little less than .12 foot to the mile, which is practically slackwater. The volume of the Upper Fox at low water is not stated 1639 by Major Suter, nor have I seen it stated for any point of its course. At the lock near Fort Winnebago it is a very small stream at low water, merely sufficing as a feeder to slackwater navigation. Its amount is of no practical importance in this view, for any needed supply can be drawn from the Wiscon- sin Eiver, which is the feeder for the canal connecting the two streams. Major Suter states the lift of the lock at Fort Winnebago 5387 to be 7 feet, and the height of the Wisconsin above the Fox at this point to be 91 feet. This fall of 21 feet in 2^ miles is inadmissible in a canal for navigation, and is only allowable for supplying water-power. The guard-lock at the head of the canal communicating with the Wisconsin is also a lift-lock even at low water, and enables vessels to pass into the Wis- consin. To the preceding amount of elevation between the Wisconsin and Lake Winnebago, as stated by Major Suter, must be added 21 feet for the Portage Canal guard-lock, and he makes this allowance in his table of total elevations.” 5389 Anna Ida Schaffe, a witness for complainant, testified as follows: Di rect Exam u i atio n . My name is Anna Ida Schatfe. I was born in Nancy, France. I have resided in America seven years. I was educated in the convent of the Retreat of the Sacred Heart in Saumur, France, diploma Brevet Superieur dTnstitutrice, and from the Academy Nancy. I obtained this diploma in 1898. My occupation now is teacher at New Trier Township, high school. Cook County, Illi- nois. I hold a certificate from the Cook County Superintendent of Instruction as teacher of French. In the book now shown me, which is entitled as follows: 5390 ‘‘Decouvertes et Etablissements des Francais, Dans L’ouest et Dans Le Sud de L’Amerique Septentrionale (1614-1754) Memoires et Documents originaux, Recueillis et Publies, Par Pierre Margry, Membre de la Societe de PHistoire de France, Membre correspondant des Societes historiques de Massa- chusetts, de Pennsylvanie et de Butfalo, Deuxieme Partie (1678-1685) (Occupa Portum lovavst) Paris, Imprimerie D. Jouaust, Rue Saint-Honore, 338. M DCCC LXXVII.” The portion beginning on page 32, under the Roman heading II, and ending on page 93, with the words at the foot ^^d’La Salle,” 1640 Scliaffe, — Direct Exam. — Continued. I have made a translation of. The paper now produced, which is labeled ^‘Margry, Exhibit June 16, 1908.” It is the translation which I prepared. It is a correct translation to that portion of the book just mentioned. The character of the French as to speech, or writing which is used in this portion of this book, is old French, and the words are still spelled in old French. In some of the words you will find s’s that have been suppressed now, and accented in the new French, some of the words end 5391 in and ^4s” throughout the book. Some of the words in his letter are used that don’t mean the same now. For instance the word “t-e-l-l-e-m-e-n-t ” is a French word. In these days, now, tellement means ^‘so much” — ^^so much of it,” while iu his letter he really means ^^so. ” If we translate it in English now it means ‘‘so” — “so that I had to do this,” and “so that this happened.” It is an adverb of quantity. Counsel for complainant offered in evidence the translation of the letter in the 2nd Margry, pages 32 to 93, which is abstracted as follows: 5392 “Chevalier De La Salle Established himself in Illinois. Letter of the Discoverer to one of his associates.” (Foot-note: The beginning is missing but you can go to complete it to the official ‘Delation’ of 1679 to 1681, of which the writer has more than inspired himself of this letter and of the following since he copies them often, taking care, al- ways to avoid in his description passages where La Salle speaks of intrigues and names those of whom he has to com- plain.) ^Marked Passages in LaSalle’s Letter of 1860. (Margry Exhibit, June 16-08, Pages 1, 27, 28, 29, 31, 32.) “1679, 29 September 1680. * * * boys, they are prompt, quick and active much more tlian the other savages with which they are alone subject to quarrel and to fight, all those that we have known until now never getting angry. * * * They know neither drink, nor the vices which result from it. They indulge in the same superstitions as the rest of the people of America, believing in dreams and in about the same stories concerning the creation of the world with this exception that instead of believing, as 1641 some do that a turtle supports the earth, these people believe that the otter does. 5402 Others, called Chaa, who live up the big river, arrived on the 24th of February and invited us to go to their home where they said they had a quantity of otter and furs and were neighbors of the west sea. One of the three Reverend Father Recollects who had until then accompanied me and offered himself, with two of my bravest men to take this trip so as to not lose the opportunity of announcing the gospel to some people who liad never heard of it. They went away the last day of February in a canoe, carrying with them a 'calumet de paix’ which is, as I have told you, a safeguard that these barbarians very seldom violate. I expect news from them so as to learn the success of their enterprise. However, winter having been much longer than usual and the ice stopping communication with the village where the India wheat was hidden, and the provisions getting short for those who were working at the fort, T decided to go in order to find a way to provide for them. I sailed with six French people and a savage in two canoes, the river being free in front of the fort; but we hadn’t gone an hour before we found it frozen. I thought that the little current there was in this- place was the reason the ice lasted there longer, and, not wishing to leave my canoes that I wanted to send back loaded with India wheat to the Fort as soon as I arrived at the vil- lage, I made my people hope that at the end of this frozen lake the current would have melted the ice, and that we would have free passage. We made two sleds and we put our equip- ment and our canoes on them and we dragged the whole thing to the end of the lake which is seven or eight leagues long. The river the next day was covered with ice for about four leagues below the lake some of it being too thin to walk on and some of it too thick to be able to break it and get through bark canoes. We then passed that day, the second of March, carrying everything by way of the land in the snow up to the middle of our legs and through some woods, and we ar- rived that evening at some cabins of savages where we ob- tained shelter from the rain which fell all night in great quan- tity. The third we navigated in a canoe along the river, which we found frozen in seven or eight places, and we made the passage by striking with poles until about four o’clock when we saw the river frozen more than a foot thick, but so uneven that on account of the great quantity of holes that were in it we could not walk on it and were obliged to take a circuit of almost two leagues to drag our canoe through some frozen marshes, at the end of which the river was free. We moved 5403 forward until noon when we began to fight great banks of 1642 Extract, — LaSalle’s Letter. — Continued. ice which flowed in the direction of the current and covered all the river. We were waiting for an open space to slide be- tween and continued thus onr way until evening, when we were again obliged to stop, and to carry the next day all onr baggage for about one-half a league, at the end of which we found a little canal which we followed in the canoe, sometimes dragging it in the water which was up to onr knees, some- times making a passage for it and breaking the ice with flail and hatchet. That lasted about two leagues, at the end of which we had to drag on the snow and through the woods un- til the next evening, the snow, which was falling being too soft to continue our journey, obliged us to stop until the night of the 9th when it froze quite hard and the snow could sup- port our snow shoes, which we used to walk on it, without going through. IVe made that day 7 to 8 leagues with this equipment, and the next day after having made six or more we arrived at a village where we remained two days, detained by a great rain which brought down from the top of the river such a great quantity of ice that it broke up the ice in front of the village; but being stopped by some islands and strips of sand which they encountered, a great mass of ice collected and piled up with such extraordinary violence, that we lost all hope of being able to send provision to the fort for a long time, not only because there was no appearance of the navigation being open soon, but because there was still less hope that some savages would arrive in the village to sell us some. * * * * * During that time, the four men who were to accompany me carried my canoe and our baggage from the village to a rapid which is four leagues higher up, above which the river seemed to be beautiful. We sailed the 16th and continued our way 5404 the 17th; but the ice banks obliged us to set foot on ground at any moment. We made only ten or 12 leagues these two days, and the morning of the 18th found the river all frozen without hope of navigating any more. We then hid our canoe on a small island to preserve it from fire and began to walk, loaded with our equipment. In two days we went through a country 25 leagues wide, and as the sun was very hot we were continually walking in the water of the melting snow. The 21st and the 22nd until noon we walked always across big marshes which led to a very rapid river, too deep to cross it on foot, we were obliged to make a raft with much trouble, because around there there were only small oak trees which were not good for that and cannot float. We looked, how- ever, for some dry ones and, mixing them with reeds and tving the whole thing with rushes, we crossed this river on this raft which, not being strong enough was always between two waters. 1643 The next day, we arrived on the shore of the Lake of the Illinois, after having passed three other rivers in the same way; we arrived at last on the 24th at the river of the Miamis, where I had made in the autumn a redoubt that T found still intact at 120 leagues from the village of the Illinois. I met two men that I had sent ahead to get my barque who increased my anxiety because they told me that they had not heard any news from it at Missilimakinak where it was to pass, and from which place they had departed the 28th of December more than three months after the time set for the l)arque to be there; but what made them hope that it was not lost, was that in going around the lake, they had not seen any debris and that several savages and French people who had arrived from the different places on the lakes, had not seen any mark of a wreck, and that some savages said they had heard two or three canon discharged in the night, on account of great southwest winds which were favorable for a boat to pass on from there, and unfavorable for landing at Afissilimakinak.’^ (Pages 50, 51, 52, 53, 54, 60, 61, 64, 67, 68.) 5411 Third, you complain that in my letters T do not tell you anything special of the Illinois and of the riches to be found there. It doesn’t seem to me conceivable that you have hoped for some, or you do not think of the distance of the places of which it has been impossible for me to gain much knowledge in six weeks, that I have remained sick in Quebec, six hundred leagues from that country. I have well received a letter of the name Michel Ako and of his comrades who went there last spring, which was brought to me by a canoe, which I sent on purpose to the Fort on my arrival, by which I learned what 5412 I told you of the copper and that they had traded the quan- tity of oxen skins that I have spoken of to you. But that was done before my arrival and I did not know more except for that in leaving Quebec than I knew in leaving France. The Fort and the little boat that I said had been begun were at the Sault de Conty. The barque was finished the following month of May, and sailed the 7th of August, 1679, and has been lost on coming back from the Lake of the Illinois where I had taken it fortunately. I have not been able to have any news from it, nor see any other debris than a hatchway, a door of the room, and the ball of the pa\dlion stick. On this barque I had three remarks to make you to answer all that any one could say on that. First that it only got lost in coming back from where I had taken it fortunately, and consequently it has not been by lack of precaution nor knowledge of the road, but by inevitable effort of the storm which became terrible two days after its departure and lasted five days: Ext met, — LaS alle L etter. — C o ntinued. Second, that there was neither any lack of capacity in the pilot who had held this position in the- greatest vessels of Canada and of the Islands, nor of sailors, the custom being to put no more than six on a boat of fifty tons. Third, the season was not too much advanced, navigation continuing ordinarily until the end of November, and it was wrecked on the 20th of September; Fourth, I think it is impossible to do what Monsieur L’abbe Bernou asked me, to send some one to learn if the lakes and the great river were navigable otherwise than by barque, which must take a road very different from that canoes take, which are obliged to always go along as near the shore as they can in order to land at the first wind of which they could not stand the least squall in the middle of these lakes forty or fifty leagues large, and the barques could not keep too near the. middle of the water in order not to be thrown on the shore, so that it is necessary to go in a barque to discover the difficulties of navigation, or it will be necesary to blame those who have crossed the unknown sea for not having tried them with launches in order not to risk their boats. Fifth, if that had been possible it would have taken three years to go around the lakes which is more than fifteen hun- dred leagues and where the least wind sometimes holds a canoe 8, 10, 15, 20 days in a place without advancing. Sixth, this barque was absolutely necessary and no one can get along without it for this enterprise. Seventh, for the transportation of big loads, as rigging up and apparatus for the boat that I had ordered to be made in the Eiver of the Illinois, that being impossible in a canoe, for although they have used a canoe to bring to the Sault of the Kapids the apparatus of the barques that I have con- structed on it, it does not follow that one could do it for this boat in these lakes, because I am the only one who succeeded along the rapids against the hope of all those who saw me undertake it, but I did not have two of the difficulties which are insurmountable in the lakes: One, the big winds which oblige me to land sometimes in difficult and steep places and in the waves which come up all of a sudden, so that it would be impossible to load these canoes and to prevent them from breaking, if, as three men at the most conduct them, two of them are obliged in this hap- pening to hold the canoes while the other carries the pack- ages on land, the third one happened to encounter loads that he could not move such as cables, anchors, and iron for the rudder would be. The second difficulty comes from the length of these voyages in canoe by these lakes on accoimt of their size, which give rise to some frequent storms which stop the canoes, that are 1645 never found in the rapids where one is never inconvenienced by the winds and which stretch only forty leagues; Second, concerning first, pecans, and originals, if there 5413 were some, and that you wish to have some returns, as you notify me by way of Canada, it is impossible for that to use canoes in which you get everything in three times only sixty oxen skins at the most by these lakes ; Third, for the safety of the effects that you cannot prevent from being at the discretion of the teamsters, the waves and the rain wetting often, what there is in it, that oblige one to remove to a dry place from time to time what is in the canoe where nothing is enclosed and covered, and without mention- ing the fact that one cannot do anything secretly ; Fourth, because having to lead several men incapable of go- ing in a canoe, as some of the new ones that have come from France, the expense of their passage would be great for this reason, there not being any teamster who would drive them less than two or three hundred pounds a man ; Fifth, for the safety of the men and of the effects which would be much more exposed in canoes, not only on account of the peril of the waters which is continuous, but to be killed by the savages as it happened to two men of the Jesuits last autumn, and to suffer hunger, it being impossible to carry enough food in some canoes for a long trip and very diffi- cult to supply by hunting for a great number of people. 5415 * * * I not have any trouble in giving you all the in- formation that you will ask me as you will not have any trouble to answer me the things which I will ask you to ex- plain; but also I must expect that you will not believe every- thing, and that I will not have to prove to you that I am not crazy. It is the first thing that you must have observed be- fore you did business with me, and for the long time that we have seen each other you have been able to know me, or I must have good spells which last a long time. 5416 ^ ^ ^ ^ After all. Sir, it is only a little delay that you must not find strange after such great adversities which have not hap- pened because of my fault. You could blame me perhaps for not having given necessary orders for the reception of what came last year, if I had had notices by the first boat and if the protested letter had not made me believe what had been written to me, that nothing would be sent to me that year; and moreover nothing has been lost. 5417 ^ ^ \ ^ I have an idea that you will probably not agree to and 5418 which I propose to you to do only what you want. It is that if the distance of this affair and the little usage that you have for it caused you to mistrust the success or that you 1646 Extract, — LaSalle’s Letter. — Continued. suspect that there is some confusion between the Fort and the Illinois, I offer you for the past to send to you as soon as I can the money that you have advanced, as well what I have received as what has been lost; and the following year I will send you fifty per cent, profit, on the condition that after having received the principal of 1682 you wall send me in 1683 by the first boat the fulfilment of the memorandum that I will furnish you at your risk as far as Quebec; that in 1683 I will send you back the fifty per cent, of the principal that you have already furnished, with a memorandum that you will fulfill in 1684, which will come also at your risk by the first boat where I will be obliged to keep ready for you the same profit for the part of the profit that you can claim from the Illinois; and thus consecutively every year to send you the amount of the memrandiim that you have furnished the year before, the profit payable in Quebec in furs at the cur- rent price or in a draft on farmers on the condition that the prices of the things will be in cash in France during the ten years of our treaty; as also I will oblige myself to furnish you the copper, if there are some mines, and the oxen skins at a price that we will settle for Quebec or for the Gulf of Mexico, and for all the other merchandise of which I will send you samples. That being done, I will close my affairs with everybody and will do business only with the Illinois for you, not even for the Fort Frontenac as soon as the Sieur Piet will have gotten some advantage to repay him for the losses that he has suffered. It is not that I do not persist in the resolution to leave the direction of this affair to another, but it is that I have a person on whom I can depend.” 5420 Counsel fok Complainant. From Volume 2, Magazine of American History, the second paragraph of the article read by counsel for defendant, I offered the heading and the first paragraph in connection with ^^The reason for offering it is sim- ply to piece it together. This is the 3d of January, 1682, fixing the period he was speaking of.” Said passages from said book were received and read in evi- dence, as follows : ‘Werival of LaSalle at the Illinois. Description of the Country as far as the Junction of the Missouri with this River, which the Discoverer Named Col- bert River. (From some detached leaves of a letter of LaSalle, the re- mainder of which are missing.) ” * * * little before Christmas, and I found that five of 1647 my people, and among others the interpreters, had run away and hidden themselves in a river, fearing the difficulties which my enemies had depicted to them in this voyage. Others were fifty leagues distant on a hunting expedition, by order of M. de Tonty, who remained with two men and Father Zenobi. I took ten with me and four savages hired for the voyage; hut finding my people so scattered, and fearing that I should not be able to regain those wdio were absent, as in- deed I could not find the first five, I hired fourteen savages, who belonged to New England, and had come to this quarter on a trading expedition, to carry to their country the heaver skins of these people. I promised them one hundred each, which are worth here 400 livres, payable partly in advance, and finding that I should not have enough Frenchmen to be able to separate them, leaving a part in charge of the mer- chandise and other goods which were there, and taking off the rest, I sent M. de Tonty in advance with all my people, who, after marching three days along the lake, and reaching the division line called Checagou, were stopped, after a day’s march along the river of the same name which falls into the Illinois, by the ice, which entirely prevented further navi- 5421 gation. This was the 2d and 3d of January, 1682. I re- mained behind to direct the making of some caches in the earth, the things I left behind, wdiich were arranged in the following manner; the ridge of a sand hill is selected, and a hole made in it capable of containing the things which it is~ proposed to conceal; a sort of wooden box of the same size is then prepared, which is covered and lined with large pieces of bark, raised upon five or six logs, to prevent it from touch- ing the sand; when full, it is covered with large pieces of bark and bits of birch bark ; then it is laden with heavy pieces of wood, which are covered with sand, and hard pressed until no trace of it remains. Having finished my caches, I left the 28th of December, and went on foot to join the Sieur de Tonty, which I did the 7th January, the snows having de- tained me some days at the portage of Checagou.” Counsel for complainant in rebuttal of passages from Winsor, and also from Parkman’s ''LaSalle,” and Chamber’s Encyclo- pedia, article entitled "Joliet,” and the article entitled "La Salle,” offered the passages marked. Said passages from said books were received and read in evi- dence as follows: From Parkman’s "LaSalle,” page 2. "At an early age, it is said, he became connected with the Jesuits; and, though doubt has been expressed of the state- ment, it is probably true.” 1648 Extract, — Parkman’s LaSalle. — Continued. Foot-note : ''Margry, after investigations at Eonen, is satisfied of its truth Journal General de PInstruction Pnblique, xxxi, 571. Family papers of the Caveliers, examined by the Abbe Fail- lon, and copies of some of which he has sent to me, lead to the same conclusion. We shall find several allusions hereafter to LaSalle’s having in his youth taught in a school, which, in his position, could only have been in connection c^ith some 5422 religious community. The doubts alluded to have proceeded from the failure of Father Felix Martin, S. J., to find the name of La Salle on the list of novices. If he had looked for the name of Bobert Cavelier, he would probably have found it. The companion of La Salle, Hennepin, is very explicit with re- gard to this connection with the Jesuits, a point on which he had no motive for falsehood.” On page 3 : ‘^His connection with the Jesuits had deprived him, under the French law, of the inheritance of his father, who had died not long before.” On pages 18-21 : ‘‘On the last day of September, the priests made an altar, supported by the paddles of the canoes laid on forked sticks. Dollier said mass ; La Salle and his followers . received the sacrament, as did also those of his late colleagues; and thus they parted, the Sulpitians and their party descending the Grand Biver towards Lake Erie, while La Salle, as they sup- posed, began his return to Montreal. What course he act- ually took we shall soon inquire; and meanwhile, for a few moments, we will follow the priests.” * * * 5424 “We return now to La Salle, only to find ourselves in- volved in mist and obscurity. What did he do after he left the two priests! Unfortunately, a definite answer is not pos- sible ; and the next two years of his life remain in some meas- ure an enigma. That he was busied in active exploration, and that he made important discoveries, is certain; but the extent and character of these discoveries remain wrapped in doubt. He is known to have kept journals and made maps; and these were in existence, and in possession of his niece, Madeleine Cavelier, then in advanced age, as late as the year 1756; be- yond which time the most diligent inquiry has failed to trace them. ’ ’ Page 106: “He is also stated to have declared that Louis Joliet was an impostor, and a donne of the Jesuits, — that is, a man who worked for them without pay.” 1649 5425 Parkman’s LaSalle, page 106. Foot-note : ^‘This agrees with expressions used by La Salle in a memoir ' addressed by him to Frontenac in November, 1680. In this, he intimates his belief that Joliet went but little below the mouth of the Illinois, thus doing flagrant injustice to that brave explorer.’^ From Chamber’s Encyclopedia, Volume 8, pages 689-691, Article, LaSalle : ^‘LaSalle, liene Robert Cavelier, Sieur de, 1643-87; b. in Rouen, France, of a wealthy merchant family; discoverer of the Ohio and the main part of the Mississippi river. Studious • and grave in youth, he entered a school of the Roman church and became a Jesuit priest. About his twenty-third year he withdrew from this service wdth the good-will of his superiors, and sailed for Canada, where an older brother was priest at Montreal in the seminary of St. Sulpice. This seminary was a religious corporation to which had been given a sort of feudal proprietorship of Montreal and its vicinage. The superior, seeing in LaSalle a youth of high character, granted him a tract of land with seignorial rights, where the village of La Chine now stands, near the rapids of the St. Lawrence. The youthful lord built a fort band of the Senecas 5426 spent the winter at LaSalle’s fort and told him of the great Ohio rising in their country and flowing to the sea, but so long that eight or nine months were required to paddle to its mouth. La Salle believed that this stream must empty into the gulf of California on the Pacific. He quietly formed his plans to be its Columbus, obtained the governor’s consent, and letters patent authorizing the exploration, hut at his oitii expense. He sold his seignory and all improvements to get the means. July 6, 1669, with 14 men and four canoes the expedition started up the St. Lawrence. It took them 30 days to pass the rapids, the Thousand Islands, and to reach Lake Ontario. Thence they skirted the s. shore to the mouth of the Gfenesee, where they remained a month, seeking informa- tion and friendship among the Indians. Then coasting west- ward they passed the mouth of the Niagara, heard the' far roar of the cataract, and reached the w. end of Lake Ontario. There he found a Shawnee prisoner who promised to con- duct him to the Ohio river in six weeks. Here he met Joliet, afterwards with Marquette, discoverer of the upper Missis- sippi, returning from a futile search for copper mines on Lake Superior. From him he procured a map of the lake coun- try which he had visited. From this point the records of La Salle’s movements are not full. It is known, however, that he went southward and embarked on the head stream of the 1650 Extract Chamber’ s Ency., LaSalle. — Continued, Allegheny River e. of Lake Erie and followed it down to the Ohio, which he explored to the rapids at Louisville. There he learned from the natives that, far beyond, this stream joined the bed of that great river which lost itself in the vast low- lands of the south. Here his men deserted in a body. La Salle returned ^‘400 lieues’’ to Canada alone, living upon the chase, herbs, and the hospitality of the natives. Nicholas Perror, a famous early voyageur states that he met La Salle in the summer of 1670 hunting on the Ottawa with a party of Iro- quois. This gives the required time for his return, and indi- cates both his reduced circumstances and that he was ener- getically at work to get the means for another expedition. The season of 1671 finds him embarked on Lake Erie, which he skirted in canoes to the mouth of the Detroit river; thence through Lake Huron to Mackinac and Lake Michigan. Be- 5427 yond Green bay he explored the western shore of the lake, not known to have been visited before by white men, and made the portage to the Illinois river either where Chicago now stands, or by the way of the St. Joseph and the Kankakee on the s. e. shore of the lake. He followed down the Illinois to, or nearly to, the Mississippi, and made a map of its course and tributary streams. This map indicates that he made the Chicago portage, though his subsequent explorations via the St. Joseph and Kankakee portage indicate that he did not so early learn of the Chicago trail to the Illinois. He returned to Montreal and reported his discoveries. * * * season of 1675 finds LaSalle back at Fort Frontenac and in a posi- tion of great power, where his trading plans could hardly fail to realize great profits and ample facilities for his ex- plorations. Wealthy relations at Rouen, now very proud of him, furnished him with ample means to make the improve- ments and maintain the garrison required by the terms of his grant ; which he fulfilled. About this time a bitter feeling between LaSalle and the Jesuits threatened to endanger the success of his enterprises. Evidently a man of settled religious belief in the Catholic faith, he was at the same time advanced in his views of what tends to a people’s development, and of the controlling power of commerce. He saw little advantage to France or the Indians in missions merely to induce an outward worship of the cross by the savages. The Jesuits could retain their con- trol over the Indians only by excluding traders from among them. They were therefore enemies of any trading around their distant missions which they could not control for the sup- port of their order. The profits derived from the fur trade under their direction at the missions was an important part of their revenue. Thus a monopoly of trade as well as of re- ligion grew up in their hands, and divided Canada into two 1651 parties. The imperious and clear-headed Frontenac and La Salle, with the power of the temporal government, and one branch of the church, were on one side, and the solid Jesuit 5428 power was on the other. With the latter were numerous traders who thrived by their favor at the missions. LaSalle was considered the head of the former party, and no means were spared to break his influence and injure his good name. The Jesuits procured an order from the supreme council pro- hibiting traders from going into the country of the Indians to trade, thus giving their missions the monopoly. LaSalle cir- cumvented this by inducing a large settlement of Iroquois around his fort, who could range the country for him as hunt- ers and trappers without being considered traders. Besides a new fort and barracks, he built a flouring mill, a bakery, and groups of houses for French settlers. His fort was sur- rounded by Indian villages. Absolute lord of the colony, he seemed to lay the foundation of his own fortune by multiplying the means and incentives to industry for others. Early in 1678 he again visited France to secure confirmation and extension of the privileges of discovery before granted. * * * In November the several parts of the expedition as- sembled at Fort Frontenac. Father Hennepin had a com- mission under him. On Nov. 8, 1678, disregarding the late- ness of the season, he embarked to begin the great journey to the sea. Winter frowned upon the lake, but in eight days the vessel anchored in Toronto bay. On Dec. 5 they crossed to the mouth of the Niagara, and commenced a palisade fort. The vessel was wrecked soon after, and the stores saved from her were carried up the cliffs of Niagara, and thence by sledgo to the shore of Lake Erie. There, at the mouth of Cayuga creek, they laid the keel of the first vessel built above the falls — the Griffin, a bark of 45 tons. A hard winter, scant supply of provisions, the loss of the vessel and stores in Lake On- tario, hostile Indians all around them, made the settlement a dreary one. LaSalle made his way back to Fort Frontenac, 250 m., on foot, through the snows of tangled forests, with two men, a dog and sledge. On his arrival he found his property seized by creditors. He sacrificed it and adhered 5429 to the enterprise; returned with equipment for the Griffin, which was completed in the spring and summer of 1679. On Aug. 7, LaSalle and 34 voyageiirs embarked. A favoring breeze carried them to the mouth of the Detroit in four days. Nearly wrecked by a storm on Lake Huron, they reached Mackinac and anchored behind the point St. Ignace, where the Jesuits had a settlement already strong in numbers and trade. In September the voyage was continued to Green bay. Here he found his advance party had collected a quantity of rich furs. He at once loaded them on the Griffin and sent 1652 Extract,— Chamber’s Ency., LaSalle. — Continued. them back to liis creditors, but the vessel was never again beard from. LaSalle now continued bis voyage in canoes along the western shore of Lake Michigan. Storms kept them company. , Through weeks of constant danger in the surf that lashed the coast, they reached the bay of Milwaukee. South of that, fairer weather, game, and fruit welcomed them; and reaching the mouth of the St. Joseph river he erected fort Miamis. December 3, 1679, with a party of 32 men and 8 canoes they ascended the St. Joseph to where South Bend now is, were shown trails leading to the Kankakee, and carrying their canoes over the portage, launched them in a stream little more than their own width, hut growing hourly in volume as they floated down. Near the present village of Utica they found an Indian town of 460 lodges. Here, on New Year’s day, 1680, they landed and said mass. A few days later they were at the present site of the city of Peoria, below which they came upon an Indian town occupying both banks of the river.” * # * built a fort near the Indian town called Creve- coeur. That done, he began a vessel of 40 tons on the hank of the Illinois ; and then, with four Frenchmen, a Mohican guide, and a canoe, started back to Montreal via his fort at the mouth of the St. Joseph, where they arrived Mar. 24; thence e. on foot to the Detroit river, which they crossed by raft and on to the fort of the Niagara river. * * * jje traveled by the eastern shore of Georgia bay to Mackinac. It was Nov. 4 when he reached the ruined fort at the mouth of the St. Joseph. Leaving his stores there, he went on to fort Crevecoeur. 5430 There not only was the fort destroyed, but where he had left a populous Indian village the blackened remains of lodges and human bodies half-burned told of the bloody visit of the Iroquois. He followed the river to the Mississippi, seeing along that whole valley the horrible evidences of the retreat of the whole tribe of the Illinois under the murderous attacks of their powerful enemy. Leaving a mark on the shore of the Mississippi to show that he had been there, his party returned to the mouth to recommence preparations for the great voyage. It was Jan. 6, 1681, when he reached the Kan- kakee, and soon after the St. Joseph. The horrors of the Iro- quois invasion of the Illinois country had made a great impres- sion upon him. He conceived the idea, and at once put it in execution, to unite the western tribes in self-defense by rally- ing them around the French flag by his forts. His tact, noble presence, and oratory had always given him a wonderful in- fluence among the Indians, swa^dng them to his will. Soon the discords of warring tribes were made to yield to his plan. Late in May he went to Michilimackinac ; thence 1,000 m. by canoes to Fort Frontenac. This time the great governor had kept La Salle’s enemies at bay. Before winter he was again at the 1G53 head of a strong party pushing in canoes all around the lakes to the St. Joseph, where he arrived early in Deceml)er. On Dec. 21, 1861, the party of 54 men in all crossed the lake in canoes to the mouth of the Chicago to find that portage to the Illinois. The streams were frozen. The canoes were put on sledges and dragged over prairie and woodlands of the river margin till they came to open water below Lake Peoria. Thence they floated down the Illinois, and on Feb. 6, 1682, emerged on the Mississippi. Floating ice delayed them, but a week later, safely on its rapid current, they were borne toward the gulf.” * * From same book, page 358, article Joliet: ‘Moliet, Louis, 1645-1700, b. Quebec ; educated at the Jesuits’ college for the priesthood, but abandoned thej design, and going west engaged in the fur trade. In 1672 he was ap- 5431 pointed by Frontenac governor of Canada, to explore the Mississippi. He and Pere Marquette, starting from Michili- mackinac. May 17, 1673, proceeded to Green Bay, ascended the Fox River, obtained Indian guides to the Wisconsin, entered the Mississippi, June 17, 1673, and passing down, reached the Arkansas. Satisfied that the river flowed into the gulf of Mex- ico, and not into the Pacific ocean, they returned to Lake Mich- igan, by the way of the Illinois River. Joliet preceding along to Quebec, his canoe upset in the Lachine Rapids, and he lost his maps and manuscripts. From memory he prepared a map and report of the expedition. He was appointed royal hydro- grapher at Quebec. In 1680 he received the grant of the seig- neury of Anticosti Island, to the development of whose fisheries and trade he devoted himself. In 1697 he obtained the seig- neury of Joliette, which still belongs to his family.” 5432 Counsel for complainant also read in evidence from the 4tb Volume of Winsor’s ^‘Narrative and Critical History of America,” Part I, passages on pages 206 and 207, and the foot- note to that passage; And the passages from Hurlbut’s ‘^Chicago Antiquities;” And Shea’s Early Voyages Up and Down the Mississippi,” referred to in said foot-note ; Also passage on p. 179 of Winsor’s; also the passage on pages 222, 223, 224, 225, 226, 234, 235, 236, 237, 238— as follows: ‘‘Narrative and Critical History of America”, pp. 206-7: • 5433 What LaSalle did after parting with the Sulpitians in 1669 is a question over which there has been much dispute. The absence of any definite knowledge of his movements for the next two years leaves ample room for conjecture, and 1654 Extract, — Narrative and Critical Hist., LaSalle.— Con. Margry believes that maps which he made of his wanderings in this interval were in existence np to the middle of tlie last century. It is from statements regarding such maps given in a letter of an aged niece of LaSalle in 1756, as well as from other data, that Margry has endeavored to place within these two years what he supposes to have been a successful attempt on LaSalle’s part to reach the Great River of the West. If an anonymous paper (‘‘Histoire de Monsieur de la Salle”) published by Margry is to be believed, LaSalle told the writer of it in Paris, — seemingly in 1678, — that after leaving Galinee he went to Onondaga ( ?), where he got guides, and descending a stream, reached the Ohio (?), and went down that river. How far? Margry thinks that he reached the Mississippi: Parkman demurs and claims that the story will not bear out the theory that he ever reached the mouth of the Ohio ; but it seems probable that he reached the rapids at Louisville, and that from this point he retraced his steps alone, his men having abandoned him to seek the Dutch and English settle- ments. Parkman finds enough amid the geographical con- fusions of this ‘Histoire’ to think that upon the whole the 5434 paper agrees with LaSalle’s memorial to Frontenac in 1677, in which he claimed to have discovered the Ohio and to have coursed it to the rapids, and that it confirms the statements which Joliet has attached to the Ohio in his maps, to the effect that it was by this stream LaSalle went, ’pour aller dans le Mexique.’ The same ‘Histoire’ also represents that in the following year (1671) LaSalle took the course in which he had re- fused to follow Gallinee, and entering Lake Michigan, found the Chicago portage, and descending the Illinois, reached the Mississippi. This descent Parkman is constrained to reject, mainly for the reason that from 1673 to 1678 Joliet’s claim to the discovery of the Mississippi was a notorious one, be- lieved by Frontenac and by all others, and that there was no reason why LaSalle for eight years should have concealed any prior knowledge. The discrediting of this claim is made almost, if not quite, conclusive by no mention being made of such discovery in the memorial of LaSalle’s kindred to the King for compensation for his services, and by the virtual admission of LaSalle’s friends of the priority of Joliet’s dis- covery in a memorial to Seignelay, which Margry also prints. (See foot-note.) 5435 Foot-note: “The literature of this controversy is reviewed on a later page. Parkman thinks that LaSalle crossed the Chicago portage and struck the upper waters of the Illinois, but did not descend that river, and suggests that the map called in a later sketch ‘The Basin of the Great Lakes’ is indica- 1655 tive of this extent of LaSalle’s exploration in the mere be- ginning of the Illinois River which it gives. Others reject the ‘Histoire’ altogether, as Hurlbut does in his ‘Chicago Antiqui- ties,’ p. 251), not accepting Parkman’s view that La Salle was at Chicago in 1669 and 1670. Dr. Shea holds it was the St. Joseph’s River which LaSalle entered.” Thereupon counsel for complainant read from Hurlbut ’s ‘Chi- cago Antiquities,’ p. 250: 5436 ‘‘Early Maps, and the Locality of Chicago. Whatever may be said of early maps, suggested, planned or drawn, the map of Father Marquette, a copy of which ap- pears opposite page 149, is no doubt the earliest one pre- served which exhibits definitely the features of this part of the country. Yet Marquette, though he presented the line of a stream intended for the Chicago from the Lake to the Des- plaines River, he did not append to it its name, by which it was then known as well as since, in any of its varied ortho- graphy. Inasmuch as two early maps at least are involved in the extracts or remarks which follow, we will take advantage of the occasion here to say, that in entertaining several ques- tions regarding facts of history, we shall step outside the strict line implied in the title of this chapter. We therefore will here confess our incredulity where, in the 2d chapter of ‘LaSalle and the Discovery of the Great West,’ the noted historian Francis Parkman, quotes the authority of an un- known writer, at a date equally mysterious, of a paper or his- torical sketch of LaSalle, and claims or gives credit to the statement, that LaSalle visited the south end of Lake Mich- igan, and the upper Illinois River or its tributaries, previous to the journey of Joliet and Marquette. We have previous- ly suggested (see p. 145 of this vol.) that white men may have been here before the last-named gentlemen; but the evi- dence which Mr. Parkman presents, to prove that I^aSalle was the individual who did so, is what we object to, and be- lieve we have good reason to discredit the testimony. The other statement, that of reaching the Mississippi River like- wise earlier than Joliet, we leave to Mr. Parkman himself to combat, which he does while allowing the improbable other half of the story. We copy the following from Mr. Park- man’s book. Speaking of LaSalle, he says : Page 21. — ‘As for himself, the only distinct record of his movements is that contained in a paper entitled “Histoire de Monsieur de la Salle.” It is an account of his explorations 5437 and of the state of parties in Canada previous to the year 1678, taken from the lips of LaSalle himself, by a person whose name does not appear, but who declares that he had ten or twelve conversations with him at Paris, whither he 1656 had come with a petition to the Court. The writer himself had never been in America, and was ignorant of its geography ; hence, blunders on his part might reasonably be expected. His statements, however, are in some measure intelligible, and the following is the substance of them. ” (We omit what is said of LaSalle’s journey to Central New York, Lake Erie, and the Ohio River. The date sug- gested by Mr. Parkman was 1669- ’70.) Mr. Parkman continues : ‘^But how was LaSalle employed in the following year? The same memoir has its solution to the problem. By this, it appears that the indefatigable explorer embarked on Lake Erie, ascended the Detroit to Lake Huron, coasted the un- known shores of Michigan, passed the Straits of Michilli- mackinac, and, leaving Green Bay behind him, entered what is described as an incomparably large bay, but which was evidently the southern portion of Lake Michigan. Thence he crossed to a river flowing westward, — evidently the Illinois, — and followed it until it was joined by another river flowing from the northwest to the southeast. By this, the Mississippi only can be meant; and he is reported to have said that he descended it to the thirty-sixth degree of latitude, where he stopped, assured that it discharged itself not into the Gulf of California, but into the Gulf of Mexico ; and resolved to follow it thither, at a future day, when better provided with men and supplies.’ After endeavoring to enlighten us, and to make clear some part of the ‘Histoire,’ as well as to adjust supposable dates to an indefinite relation, Mr. Parkman closes the chapter as follows: ‘LaSalle discovered the Ohio, and in all probability the Illinois also; but that he discovered the Mississippi has not been proved; nor, in the light of the evidence we have, is it likely.’ It is not without considerable misgiving on Mr. Parkman ’s account, regarding that ‘Historie de Monsieur de la Salle,’ that we read his serious consideration and discussion of the merits of that paper, and the amount of credit awarded to it by him. Of course, we must esteem it an error and a defect in his interesting and valuable volume. We can scarcely avoid the conclusion arrived at in some other cases; and that the document spoken of must be classed with those of a quality 5438 to which we have alluded on a previous page (see ante, p. 155). Indeed Mr. Parkman, speaking, we suppose, of the writer of the ‘Histoire,’ says: ‘But it comes to us through the medium of a ])erson strongly biased in favor of LaSalle, and against Marquette and the Jesuits.’ Before giving our own reasons for placing no faith in the 1657 above named ‘Histoire,’ or in Mr. Parkman’s definition of its meaning, we will here quote what Mr. P. says of two maps in the appendix of his book, where appear notices, also, of va- rious other maps, mostly unpublished, of the lake region of the West. ‘Three years or more after Galinee made the map mentioned above, another, indicating a greatly increased knowledge of the country, was made by some person whose name does not appear. This map, which is somewhat more than four feet long and about two feet and a half wide, has no title. All the Great Lakes, through the entire extent, are laid down on it with considerable accuracy. Lake Ontario is called “Lac Ontario, ou de Frontenac.’’ For Frontenac is indicated, as well as the Iroquois colonies of the north shore. Niagara is ‘^Chute haute de 120 toises par ou le Lac Erie tombe dans le lac Frontenac.^’ Lake Erie is “Lac Teiocharontiong, dit com- munement Lac Erie.’^ Lake St. Clair is “Tsiketo, ou Lac de la Chaudiere.” Lake Huron is “Lac Huron, ou Mer Douce des Hurons.’^ Lake Superior is “Lac Superieur.” Lake Michigan is “Lac Mitchiganong, ou des Illinois.” On Lake Michigan immediately opposite the site of Chicago, are writ- ten the words, of which the following is the literal translation : “The largest vessels can come to this place from the outlet of Lake Erie, where it discharges into Lake Frontenac (On- tario) ; and from this marsh into which they can enter, there is only a distance of a thousand paces to the Biver La Divine (Des Plaines), which can lead them to the river Colbert (Mis- sissippi) and thence to the Gulf of Mexico.” This map was evidently made after that voyage of La Salle in which he dis covered the Illinois, or at least the Desplaines branch of it. The Ohio is laid down with the inscription, “River Ohio, so called by the Iroquois on account of its beautv. +he Sieur de la Salle descended.” (After noticing the map of Marquette, as well as two other maps which Mr. Parkman says were made by the Jesuits, he presents the following, which we copy) : “Of far greater interest is the small map of Louis Joliet, made and presented to Count Frontenac after the discoverer’s return from the Mississippi. It is entitled Carte de la decou- uerte du Sr. Jolliet ou Pon voit La Communication due fleuue St. Laurens auec les lacs Frontenac, Erie, Lac des Hurons et Illinois. Then succeeds the following, written in the same antiquated French, as if it were a part of the title: “Lake Frontenac (Ontario) is separated by a fall of half a league from Lake Erie, from which one enters that of the Hurons, and by the same navigation, into that of the Illinois (Mich- 5439 igan), from the head of which one crosses to the Divine River (Riviere Divine; i. c., the Desplaines branch of the river Illi- 1658 Extract, — Parkman ’s LaSalle, — Continued. nois), by a portage of a thousand paces. This river falls into the river Colbert (Mississippi), which discharges itself into the Gulf of Mexico.’’ A part of this map is based on the Jesuit map of Lake Superior, the legends being here for the most part identical, though the shape of the lake is better given by Joliet. The Mississippi, or ‘^Riuiere Colbert,” is made to flow from three lakes in latitude 47 degrees, and it ends in latitude 37 degrees, a little below the mouth of the Ohio, the rest being apparently cut otf to make room for Joliet’s letter to Frontenac, which is written on the lower part of the map. The valley of the Mississippi is called on the map ‘^Colbertie, ou Amerique Occidentale.” The Mis- souri is represented without name, and against it is a legend, of which the following is the literal translation: ‘‘By one of these great rivers which come from the west and discharge themselves into the river Colbert, one will find a way to enter the Vermillion Sea (Gulf of California). I have seen a vil- lage which was not more than twenty days’ journey by land from a nation which has commerce with those of California. If I had come two days sooner, I should have spoken with those who had come from thence, and had brought four hatchets as a present.” The Ohio has no name, but a legend over it states that LaSalle had descended it.’ The ‘Histoire’ as we have seen, or- by the assurance of Mr. Parkman, professes to give particulars of LaSalle’s explora- tions, as well, also, to treat of the condition of parties in Canada, personally known to him, down to the year 1678. LaSalle, as we understand, went to France in 1677, and sailed the following summer for Canada. He did not visit France again until 1683. Now, we are informed by the interpretation of Mr. P. that it was in 1671, two years before Joliet and Marquette’s voy- age, which voyage the Government of Canada had taken con- siderable pains to set afoot, or rather afloat, that LaSalle, according to the writer of the ‘Histoire’ had half or wholly accomplished the work ; yet nobody in America seems to have known it. Frontenac, the Governor, however, was a particular friend of LaSalle. But how had ‘the indefatigable explorer embarked on Lake Erie, ascended the Detroit to Lake Huron, coasted the un- known shores of Michigan, passed the Straits of Michillimack- inac, and, leaving Green Bay behind him, entered what is described as an incomparable larger bay, but which was evi- dently the southern portion of Lake Michigan!’ Had he con- 5440 structed an earlier Griffon than the one of which we have pre- viously read, which made the passage of the lakes in 1679, eight years afterward! If so, is it not strange that none ever told of it!* But possibly he came by canoe; if so, that 1G59 voyage ought not to have been forgotten. That journey, if in the frail bark, was of necessity greatly lengthened by hav- ing to follow and keep near shore all the way ; no long traverse could be made in canoe. We are quite well aware that LaSalle was equal to these tours, and greater ; but we are considering the subject in connection with the evidence presented. Mr. Parkman suggests that ‘the southern portion of Lake Michigan^ was reached, and then the ‘Tresbeau havre,’ which he supposes ‘may have been the entrance to the Eiver Chi- cago.’ (In November, 1680, when taking Joliet to task, he did not call it tresbeau havre.) But why not let Green Bay, Fox River, Lake Winnebago, and the Wisconsin fill the description as well? We might, however, propose a theory if indeed the ‘His- toire’ was worthy of a theory; that would be this: Inasmuch as the ‘Histoire’ presents no very rigid or precise dates, we are at liberty, in opposition to Mr. Parkman ’s ideas, to choose very reasonable ones if we please. We propose then that we adopt the year of 1683 or 4, a part of both of which years LaSalle passed in France during his last visit; and it was then that the information so loosely recorded was imparted to the writer of the ‘Histoire.’ Therefore, we would hint that we are saved further speculation as to the above-named jour- ney, which began when ‘the indefatigable explorer embarked on Lake Erie,’ for that was when he went on board the iden- tical Griffon, in the year 1679. The reader will please com- pare the two stories, and see how similar they are. But if LaSalle had discovered and was really familiar with the route from Lake Michigan via the Chicago or other chan- nel to the Mississippi in 1671, would he not very likely have 5441 somewhere told of it, intelligently and definitely, in some of his communications? His letter to Frontenac, dated Novem- ber, 1680, is a long one; and he discusses the subject of the Chicago route, which had been first communicated by Joliet, but he says nothing of his own earlier acquaintance with this locality in that letter or any other. Neither does Frontenac see ante, p. 147) ; nowhere does he give him precedence in the matter before Joliet, and nothing appears in the publications of Shea, French, or Margry, that can be tortured into a mean- ing to the contrary. Mr. Parkman, as we have seen, says : ‘Three years or more after Galinee made the map mentioned above, another, indicat- ing a greatly increased knowledge of the country, was made by some person whose name does not appear.’ Galinee made his map in 1670; adding the 'three years* would make it the same year that Joliet returned from the Mississippi. But the convenient ‘or more’ ivliich Mr. Park- man appends, while it implies a doubt in his own mind as to Extract, — Parhman’ s LaSalle. — Continued. ivlien it was made, yet takes away the force of any suggestion which he appears to urge, that it was made from LaSalle’s information and not that of the well-known tour of Joliet and Marquette. We are forced to assert that it seems an error, illy insisted on by Mr. Parkman ; when speaking of this map, he says: ‘This map was evidently made after that voyage of LaSalle in which he discovered the Illinois, or at least the Desplaines branch of it.’ The above quoted notices of the two maps are placed in the order as given by Mr. Parkman in the appendix of his book; but we beg the reader to compare the descriptions, as they were evidently by the same person, who was Louis Joliet. Cer- tainly, Joliet compiled these maps after his voyage of 1673^ mainly from what he had personal knowledge of ; and the first-named (by Mr. Parkman) ; or the lalger one of the two, was probably the latest made.” 5442 Shea’s “Early Voyages Up and Down the Mississippi/ p. 16, footnote: “He (speaking of LaSalle) came to Canada about 1668, and an apparently apocryphal account makes him soon after discover and descend the Ohio (see Dussieux, Le Canada sous le domination Francaise). As a trader he voyaged extensive- ly on the Lakes, and built a trading house at La Chine, which owes its name to him, an index of his desires. His first official employment was to visit the Senecas, and invite them to a gen- eral Congress of the tribes. He had gained the good will of Frontenac and proposed to him vast plans of discovery and trade, which received his sanction. The French Court in 1675, granted him Fort Frontenac and the seigneury, on condition of keeping it in repair, maintaining a garrison and clearing the land. He obtained also a patent of noblesse. For a time he pushed forward trade and colonization at Fort Frontenac (now Kingston) and built the first vessel that ever ploughed the surface of Lake Ontario. Obtaining new grants in 1678, he pushed on to Niagara, built a vessel there, and again the pioneer of western navigation, sailed through Lakes Erie, St. Clair and Huron to Mackinac. Sending back his vessel with a load of furs, he proceeded in canoes to the Illinois country-, building a fort on the St. Joseph’s River, and another on the Illinois, whose name Crevecoeur, records his despondency at receiving no tidings of his bark or supplies from Frontenac. Left unsupported, he returned by land to his fort on Lake On- tario ; but while absent his party were driven from the Illinois by the Senecas, and LaSalle on his arrival at Fort Crevecoeur found it deserted. After some search he joined Tonty at Mackinaw. Here reorganizing his party he descended the Illinois to the Mississippi, and followed that river to its mouth, which he reached April 9, 1682. Returning to France, he 1661 sought to make the mouth of the river by sea. lie failed to 5443 discover it, was abandoned in Texas, and in an attempt to reach Canada, was killed by his own men, March 19, 1687. See his life by Sparks, Vol. I. N. S. American Biography, ‘The Discovery and Exploration of the Mississippi,’ &c. 5444 “Narrative and Critical History of America,” p. 179: “It was not until about the middle of August, 1674, that he returned to Quebec, and Governor Frontenac, on the 14th of November, writes to the French Government : ‘Sieur Joliet, whom Monsieur Talon advised me on my arrival from France, to despatch for the discovery of the South Sea, returned three months ago, and found some very tine countries, and a navigation so easy through the beauti- ful rivers, that a person can go from Lake Ontario and Fort Frontenac in a bark to the Gulf of Mexico, there being only one carrying place, half a league in length, where Lake Ontario communicates with Lake Erie. A settlement could be made at this post, and another bark built on Lake Erie. * * * jje has been within ten days’ journey of the Gulf of Mexico, and believes that water communication could be found leading to the Vermillion and California Seas, by means of the river that flows from the west, with the Grand River that he discov- ered, which rises from north to south, and is as large as the St. Lawrence opposite Quebec. I send you, by my secretary, the map he has made of it, and the observations he has been able to recollect, as he lost all his minutes and journals in the wreck he suffered within 5445 sight of Montreal, where, after having completed a voyage of twelve hundred leagues, he was near being drowned, and lost all his papers, and a little Indian whom he brought from those countries.’ Governor Frontenac was satisfied with the importance of establishing a post on Lake Ontario, as Courcelles had sug- gested, and in the summer of 1673 visited the region. On the 3rd of June he departed from Quebec, and at five o’clock in the afternoon of the 15th was received at Montreal amid the roar of cannon and the discharge of musketry.” 5446 “Narrative and Critical History of America,” pp. 222-6: “New complications were now forming. The new gover- nor, Frontenac, was needy in purse, expedient in devices, and on terms of confidence with a man destined to gain a name in this western discovery. This was LaSalle. Parkman pic- tures him with having a certain robust ambition to conquer the great valley for France and himself, and to outdo the Jesuits. Shea sees in him little of the hero, and few traces of a powerful purpose. Whatever his character, he was soon embarked with Frontenac on a far-reaching scheme. It has been explained in the preceding chapter how the erection of a fort had been begun by Frontenac near the present town of 1662 Extract, — Parkman LaSalle. — Continued. Kingston on Lake Ontario. By means of such a post lie hoped to intercept the trafficking of the Dutch and English, and turn an uninterrupted peltry trade to the French. The Jesuits at least neglected the scheme, but neither Frontenac nor LaSalle cared much for them. Fort Frontenac was the first stage in LaSalle’s westward progress, and he was politic enough to es- pouse the Governor’s side in all things when disputes occa- sionally ran high? His becoming the proprietor of the seig- niory, which included the new fort, meant the exclusion of oth- ers from the trade In furs, and such exclusion made enemies of the merchants. It meant also colonization and settlements ; and that interfered with the labors of the Jesuits among the 5447 savages, and made them look to the great western valley, of which so much has been said; but LaSalle was looking there, too. In the first place he had strengthened his fort. He had pulled down the wooden structure, and built another of stones and palisades, of which a plan is preserved to us. He had drawn communities of French and natives about him, and maintained a mission, with which Louis Hennepin was con- nected. We have seen how in the autumn of 1677 he went once more to France, securing the right of seigniory over other posts as he might establish them south and west during the next five years. This was by a patent dated at St. Gennain- en-Laye, May 12, 1678. With dreams of Mexico and of a clime sunnier than that of Canada, LaSalle returned to Quebec to make new leagues with the merchants, and to listen to Hennepin, who had come down from Fort Frontenac to meet him. Mr. Neill (in the previous chapter) has followed his fortunes from this point, and we have seen him laying the keel of a vessel above the cataract. While this was going on LaSalle returned below the Falls, and having begun two blockhouses on the site of the later Fort Niagara, proceeded to Fort Frontenac. By spring Tonty had the ‘Griffin’ ready for launching. She was of forty-five or fifty tons, and when she had her equipment on 5448 board, five cannon looked from her port-holes. The build- ers made all ready for a voyage in her, but grew weary in waiting for LaSalle, who did not return till August, when he brought with him Membre, the priest, whose Journal we are to depend on later, and the vessel departed on the voyage which Mr. Neill has sketched. After the ‘Griffin’ had departed homeward from this re- gion, LaSalle and his canoes followed up the western shores of the lake, while Tonty and another party took the eastern. The two finally met at the Miami s, or St. Joseph River, near the southeastern corner of Lake Michigan. They now together went up the St. Joseph, and crossing the portage launched their canoes on the Kankakee, an upper 1663 tributary of the Illinois River, and passed on to the great town of the tribe of that name, where Marquette had been before them, near the present town of Utica. They found the place deserted, for the people were on their winter hunt. They discovered, however, pits of corn, and got much -needed food. Passing on, a little distance below Peoria Lake they came upon some inhabited wigwams. Among these people LaSalle learned how his enemies in Canada were inciting them to thwart his progress ; and there were those under this incite- ment who pictured so vividly the terrors of the southern re- 5449 gions, that several of LaSalle’s men deserted. In January (1680) LaSalle began a fortified camp near at hand, and called it Fort Crevecoeur, and soon after he was at work building another vessel of forty tons. He also sent off Michael Accau, or AccauTt, and Hennepin on the expedition, of which some account is given by Mr. Neill, and also by the Editor in a subsequent note. Leaving Tonty in command of the fort, LaSalle, in March, started to return to Fort Fronte- nac, his object being to get equipments for his vessel; for he had by this time made up his mind that nothing more would be seen of the ‘Griffin’ and her return lading of anchors and supplies. For sixty-five days he coursed a wild country and braved floods. He made, however, the passage of a thousand miles in safety to Fort Frontenac, only to become aware of Jhe disastrous state of his affairs, — the loss of supplies. A little later the same sort of news followed him from Tonty, whose men had mutinied and scattered. His first thought was to succor Tonty and the faithful few who remained with him; and accordingly he started again for the Illinois country, which he found desolate and tei'rible with the devastations of the Iroquois. He passed the ruins of Crevecoeur, and went even to the mouth of the Illinois ; and under these distress- 5450 ing circumstances he saw the Mississippi for the first time. Then he retraced his way, and was once again at Fort Miami. Not a sign had been seen of Tonty, who had escaped from the feud of the Iroquois and Illinois, not knowing which side to trust, and had made his way down the western side of Lake Michigan toward Green Bay. LaSalle meanwhile at Fort Miami was making new plans and resolutions. He had an idea of banding together under his leadership all the western tribes, and by this means to keep the Iroquois in check while he perfected his explorations southward. So in the spring (1681) he returned to the Illi- nois country to try to form the league; and while there first heard from some wandering Outagamies of the safe arrival of Tonty at Green Bay, and of the passage through that re- gion of Hennepin eastward. Among the Illinois and on the St. Joseph he was listened to, and everything promised well for his intended league. In May he went to Michillimackinac, 1664 Extract, — Parkman’s LaSalle. — Continued. where he found Tonty and Membre, and with them he pro- ceeded to Fort Frontenac. Here once more his address got him new supplies, and in the autumn (1681)' he was again on his westward way. In the latter part of December, with a company of fifty-four souls, — French and savage, including some squaws, — he crossed the Chicago portage; and sledding and floating down the Illinois, on the 6th of February he and 5451 his companions glided out upon the Mississippi among cakes of swimming ice. Stopping at one of the Chickasaw bluffs, they built a small stockade and called it after Prudhomme, who was left in charge of it. Again they stopped for a con- ference of three days with a band of Indians near the month of the Arkansas, where, on the 14th of March, in due form, LaSalle took possession of the neighboring country in the name of his King. On still they went, stopping at various villages and towns, securing a welcome by the peace-pipe, and erecting crosses bearing the arms of France in the open squares of the Indian settlements. On the 6th of April La Salle divided his party into three, and each took one of the three arms which led to the Gulf. On the 9th they reunited, and erecting a column just within one of the mouths of the river, LaSalle formally took possession of the Great Missis- sippi basin in the name of the French monarch, whom he com- memorated in applying the name of Louisiana to the valley. Fp the stream their canoes were now turned. On reach- ing Fort Prudhomme LaSalle was prostrated with a fever. Here he stayed, nursed by Membre; while Tonty went on to carry the news of their success to Michillimackinac, whence to despatch messengers to the lower settlements. At St. Ig- nace, LaSalle joined his lieutenant. 5452 For the events of these two years we have two main sources of information. First, the ‘Belation de la descouverte de Pembouchure de la Eiviere Mississippi dans le Golfe de Mexique, faite par le Sieur de la Salle, Pannee passee, 1682.’’ which was first published by Thomassy; the original is pre- served in the Archives Scientifiques de la Marine, and though written in the third person it is held to constitute LaSalle’s Official Report, though perhaps written for him by Membre. Second, the narrative ascribed to Membre which is printed in Le Clercq’s Etablissement de la Foi, ii. 214, and which seems to be based on the document already named. In addition to this there is tlie paper of Nicolas de la Salle (no kinsman of the explorer), who wrote for Iberville’s guidance, in 1699, his Recit de la decouverte que M. de la Salle a faite de la Riviere de Mississippi en 1682. LaSalle’s future plans were now clearly fixed in his own mind, which were to reach from Europe the Mississippi by 16G5 sea, and to make it the avenue of approach to the destined colonies, which he now sent Tonty to establish on the Illinois. With as little delay as possible, he went himself to join his deputy. In December they selected the level summit of the 5453 scarped rock (Starved Rock), on the river near the great Illinois town, and there intrenched themselves, calling their fort ‘St. Louis. ^ Around it were the villages and lodges of near twenty thousand savages, including, it is estimated, about four thousand warriors. To this projected colony LaSalle was under the necessity of trying to bring his supplies from Canada till the route by the Gulf could be secured, — that Can- ada in which he had many enemies, and whose new governor, De La Barre, was hostile to him, writing letters of disparage- ment respecting him to the Court in Paris, and seizing his seigniory at Fort Frontenac on shallow pretexts. Thwarted in all efforts for succor from below, LaSalle left Tonty in charge of the new fort, and started for Quebec, meeting on the way an officer sent to supersede him in command. From Quebec LaSalle sailed for France. 5454 Pages 234-8 Narrative and Critical History of America. There was not a little in all this to point to a state of mental unsoundness in LaSalle. At a late day Joutel, a fel- low-townsman of LaSalle, destined to become the expedition’s historian, joined the fleet at Rochelle, and on the 24th day of July (1684) it sailed, only to put back, four days later, to re- pair a broken bowsprit of the ‘ Joly.’ Once again they put to sea. Everything still went wrong. The leaders chafed and quarreled as on land. The Spaniards captured their smallest vessel. At Santo Domingo the Governor of the island and his officers joined in the quarrel on the side of LaSalle, who now fell prostrate with disease. When he recovered he set sail again with his three remaining ships on the 25th of November, coasted the southern shore of Cuba, and on New Year’s Day (1685) sighted land somewhere near the River Sabine. He supposed himself east of the Mississippi mouths, when in fact he was far to the west of them. He knew their latitude, for he had taken the sun when there on his canoe voyage in 1682; but he had at that time no means of ascer- taining their longitude. The Moly’ next disappeared in a fog, and LaSalle waited for her four or five days, but in vain. So he sailed on farther till he found the coast trending south- erly, when he turned, and shortly after met the Moly.’ Pas- sages of crimination and recrimination between the leaders of 5455 course followed. LaSalle all the while was trying to make out that the numerous lagoons along the coast were somehow connected with the mouths of the Mississippi, while Beaujeu, 1666 Extract, — Narrative and Critical Hist., LaSalle. — Con. vexed at the confusion and indecision of LaSalle’s mind, did little to make matters clearer. They were in reality at Mata- gorda Bay. Trying to make an anchorage within, one of the vessels struck a reef and became a total wreck, and only a small part of her cargo was saved. LaSalle suspected it was done to embarrass him; and landing his men, he barricaded himself on the unhealthy ground, amid a confusion of camp equi^jage. including what was saved from the wreck. A swarm of squalid savages looked on, and saw a half-dozen of the Frenchmen buried daily. The Indians contrived to pilfer some blankets, and when a force was sent to punish them, they killed several of the French. Beaujeu offered some good advice, but LaSalle rejected il; and finally, on the 12th of March the Moly’ sailed, and LaSalle was left with his forlorn colony. Beaujeu steered, as he thought^ for the Baye du St. Esprit (Mobile Bay (?)) ; but his belief that he was leaving the mouths of the Mississippi made him miss that harbor, and after various adventures he bore away for France, and reached Bochelle about the 1st of July. With him returned the engineer, Minet, who made on the voyage a map of the 5456 mouths of the Mississippi doubly interpreted, — one sketch being based on the Franquelin map of 1684, as LaSalle had found it in 1682 ; and the other conformed to their recent ob- servations about Matagorda, into whose lagoons he made this great river discharge. It soon dawned upon LaSalle that he was not at the Missis- sippi delta; and it was imperative that he should establish a base for future movements. So he projected a settlement on the Lavaca Biver, which flowed into the head of the bay ; and thither all went, and essayed the rough beginnings of a post, which he called Fort St. Louis. He was also constrained to lay out a graveyard, which received its tenants rapidly. As soon as housing and stockades were finished, LaSalle, on the last day of October (1685), leaving Joutel in command, started with fifty men to search for the Mississippi. The first tidings Joutel got of his absent chief was in Jan- uary (1686), when a straggler from LaSalle’s party appeared, and told a woeful story of his mishaps. By the end of March LaSalle himself returned with some of his companions; others he had left in a palisaded fort which he had built on a great river somewhere away. While on his return he detached some of his men to find his little frigate, the ‘Belle,’ which he had left at a certain place on the coast. These men also 5457 soon appeared, but they brought no tidings of the vessel. The loss of her and of what she had on board made matters very desperate, and LaSalle determined on another expedition, this time to the Illinois country and to Canada, whence he could send word to France for succor. On the 22d of April they 1667 started, — LaSalle, liis brother Cavelier, the Friar Douay, and a score or so others. Joutel was still left in command; and a few days later the appearance of six men, who alone had been saved from the wreck of the ^ Belle,’ and reached the fort, confirmed the worst fears of that vessel’s fate. Meanwhile LaSalle was ex- periencing dangers and evils of all kinds,— the desertion and death of his men, and delays by sickness, and the spending of ammunition. Once again there was nothing for him to do but to return to Joutel, ad so with eight out of his twenty men he came back to the fort. The colony had dwindled from one hundred and eighty to forty-five souls, and another at- tempt to secure succor was imperative. So in January (1687) a new cheerless party set out, Joutel this time accompanying LaSalle ; and with the rest were Duhaut, a sinister man, and Liotot the surgeon. For two months it was the same story of sutfering on the march and of danger in the camp. Then quarrels ensued; and the murder of LaSalle’s nephew and two others who were devoted to him compelled the assassins to save themselves by killing LaSalle himself; and from an ambuscade Duhaut and Liotot shot their chief. 5458 Counsel for Complainant. With reference to the Cooley profiles, wlien we offered those in evidence, the defendants insisted upon the documents from which they were compiled being put in evidence. We spent a few days assembling them, put- ting them together, and then it was suggested that the other side would concede the correctness of Mr. Cooley’s profile so as to make it unnecessary to put them in evidence; they have only found two criticisms, and I am about to take them up and make clear what- ever there is in that; but we submit, your Honor, as they insist upon these documents being assembled and put in evidence — that is, they have not admitted the correctness of the profiles; it is proper now that they should go in evidence, if they have not al- ready— that is, Cooley Exhibit 21 to about 40, I think. 5459 Counsel for Defendant. We objected to them. Mr. Cooley testified that this profile was correct. Then, subse- quently they offered all of the data from which the profile was made, and your Honor said we would save time if we looked it over. The Court. I remember. You were to say whether the profile corresponded with the data evidence, but there was no need for the data. 1668 Counsel for Defendant. Mr. IVoermann calls my attention to the fact that he Avishes to correct his testimony, and it- may obviate some difficulty if he does. Mr. Woermann pointed out one dis- crepancy in the Cooley profile, and he wants to explain that. He calls my attention to the fact that he thinks he was in error and desires an opportunity to correct it. The Court. Very well. Counsel for Defendant. Will you take the stand and make any statement you wish on the matter. 5460 J. AV. Woermann, recalled, further testified as follows : I was familiar with the fact that Mr. AVheeler in his 1889 survey, located his lock and dam in the left baud channel, and this profile, which we introduced, from his published report, showing a foot of water at the head of Treat’s Island — I put those things together and drew the conclusion that that profile was in the left hand chan- nel, and on this basis I criticised Mr. Cooley’s depth in the left hand channel, I find, by going farther back to the 1883 profile, that that was down in the right hand channel. The Court. Not the left hand? Mr. MMermann. Not the left hand. The Court. So you don’t criticise his depth! Mr. Woermann. No, sir. I knew the lock and dam were located in the left hand channel, and there is a discrepancy in respect to that in Mr. AVheeler’s profile, which misled me. Counsel for Complainant. I call your attention to Cooley’s 5461 Exhibit 2, which is a smaller exhibit of the same thing, at Treat’s Island, the profile shoAvs the west channel, the greater depth in the east channel. The Court. The profile shows the Avest channel, that is, the right hand, the greater depth than the east channel. That, ac- Renewal of Lease, October 3rd, 1896, for a further term of twenty years from July 17, 1896. Said renewal of lease agreement is in the following words: ‘Hn pursuance of the stipulations in the foregoing lease in regard to the renewal thereof (and in accordance with a resolution adopted by the Board of Canal Commissioners of the State of Illinois on June 30th A. D. 1896), the same is hereby renewed with the Economy Light & Power Company of Joliet, Illinois, for a further term of twenty (20) years, including the right of renewal. AYitness the signature of the President and Secretary of the Board of Canal Commissioners of the State of Illinois and 1679 the official seal of the same this Third day of October, A. D. 1896. Alt. Gerdes, President. Thomas H. Cannon, Secretary. The Seal of the Canal Commissioners of the State of Illinois. And also the signatures of the President and Secretary of the Economy Light & Power Company, and the corporate seal of the same the day and year above. Economy LiCxHt & Power By J. L. Norton, President. E. B. McMulltn, Secretary. Eesolution passed April 4th, 1901, increasing Water Power Eental, amount, $1525.00, time, October, November, De- cember, 1900. The Seal of the Economy Light & Power Company, of Chicago, Illinois.’^ 5496 Commissioners of the Illinois & Michigan Canal to Economy Light & Power Com- pany. 5497 Commissioners of the Illinois & Michigan Canal to Economy Light & Power Com- pany. Eesolution, October 1st, 1900, increasing Annual ^ Eental, place, Water Power Dam No. 1. Amount, $10,457.00 per . year. Economy Light & Power Com- pany to Commissioners of the Illinois & Michigan Canal. ^Acceptance of the fore- g( ing resolution. 5498 Certificate by John M. Snyder, Acting Secretary of the Board of Canal Commissioners that the foregoing is a true copy. 5499 Said copy of said decree so offered and excluded marked June 20th Exhibit 2, is in the words and figures following: 1680 Consent ^Decree. *' -• .T.' The Canal Commissioners. 17312. V. The Sanitary District of Chi- cago. ^Bill for Injunction. And now on this 28th day of October, A. D. 1898, again come the respective parties "to this suit, complainant and de- fendant, by their solicitors, and the court having had this case under advisement since the conclusion of the argument herein and being now fully advised in the premises doth find as follows : (Duty of the Canal Commissioners.) First: That the complainants, ‘^Tlie Canal Commissioners^^ are The Canal Commissioners of the State of Illinois, duly appointed and acting as such Canal Commissioners under the statutes of this State, and that the Illinois S Michigan Canal with its bed, banks, basins, dams, locks, ivater poiver rights, lands, lots and all other property, real or personal, be- longing to it or used in connection therewith, are by virtue of the statutes of this State under the exclusive care, manage- ment and control of said Canal Commissioners, and that it is their duty to maintain and preesrve the structures of the said Illinois & Michigan Canal, and navigation on the same and all its basins, and its locks, dams and all existing water power rights for the benefit of the People of the State of Illinois, as prescribed by the statute of this State. (Location of Canal.) Second : That said canal passes through Will County in the State of Illinois, and through the Village of Lockport and the City of Joliet, in said County. That the level of said canal from where it enters the Chicago Eiver, in Cook County, Illi- nois, extending Southerly to the Village of Lockport, on Sec- tion 23, Township 36, North, Range 10, East of the Third Principal Meridian, constitutes one level, which is fed from the waters of Lake Michigan by means of pumps maintained and operated by the City of Chicago at what is known as Bridgeport in said City of Chicago, and at the south end of said level and in the Village of Lockport aforesaid is situated what is known as Lock No. 1; that the second level of said canal commences at Lock No. 1, proceeding in a southerly di- rection until it reaches Lock No. 2, in the Town of Lockport aforesaid; that from Lock No. 2 southerly said canal proceeds until it reaches Lock No. 3, which is near to the dividing line between the Town of Lockport and the Town of Joliet, in Will County, aforesaid; that from said Lock No. 3, said canal pro- 1G81 ceeds southerly and enters Section 3, Township 35, North, Range 10, East of the Third Principal Meridian, on the North line of said section running to Lock No. 4 at a point about 300 feet south of the north line of said Section 3 where is situ- ated a lock known as Lock No. 4, and that from Lock No. 4, said canal proceeds through Section 3 aforesaid, until it reaches what is termed the upper basin of the canal, which embraces substantially the bed and banks of the Lesplaines River, said upper basin commencing on Section 3 aforesaid about 1,500 feet north of the south line of said Section 3, and said basin continuing over and including a small portion of Section 4, Town 35, North, Range 10, East of the Third Prin- cipal Meridian, and a small portion of Section 10 in the same town and range, and entering Section 9 in the same town and range, near the north line of said section, following the course 5500 of the Desplaines River, to a lock situated near to the center line of Section 9, Town 35, North, Range 10, East of the Third Principal Meridian, and near to a street in the City of Joliet, sometimes called Jackson street, said lock being knowm as Lock No. 5, and it being situated on the west side of said basin, and at said point said basin is terminated by a dam known as Dam No. 1 extending clear across said basin at its south end; that at the east end of said dam is located and situate Lots 11, 12, 13, 14, 15 and 16 of Block 37, of the Canal Trustees Subdivision of the North East quarter of Section 9, Town 35, North, Range 10, East aforesaid, v/nich said lots are the property of the State of Illinois ; that said canal continues its course from Lock No. 5 through the lower basin to Dam No. 2, and that said canal occupies from the north end of said upper basin to the said Dam No. 2 at the end of said lower basin, substantially the original bed and banks of the Desplaines River; that at said Dam No. 2 an inlet is formed whereby water from the lower basin, aforesaid, is transferred to the level of the canal, known as the Channahon level, said level commencing about 300 feet above said inlet, and being protected by a Guard Lock at the north end thereof; that said Channahon level of said Illinois & Michigan Canal is con- tinued through the City of Joliet, leaving Section 9 at or near a street known as Washington street in said City, and pass- ing in a southerly direction nearly parallel with the Desplaines River through Section 16, Town 35, North, Range 10, and leav- ing said Section 16 at a point on the south line of said sec- tion, and west of the course of the River Desplaines, which river runs from Dam No. 2, southerly, through said City of Joliet. 1682 Consent Decree. — Continued. (Sections 3 and 9 Exclusive Peopeety of Canal Com- MISSIONEES.) Third : That said Sections 3 and 9 are sections which were selected by the Canal Commissioners of the State of Illinois, and conceded to said State, by the confirmation of such selec- tion, by the President of the United States under date of May 21st, 1830, under and in pursuance of the grant of the United States to the State of Illinois of land for canal purposes, made by virtue of the several acts of Congress of the United States relative thereto ; that the Channahon level of said canal so far as it passes through the City of Joliet, the Guard Lock at the north end of said Channahon level, the Dam No. 2, at the south end of the lower basin ; the inlet for water into the Chan- nahon level of the canal from the lower basin just above Dam No. 2, and the lower basin of said canal from Dam No. 2 to Dam No. 1 were all constructed prior to the year 1841, under the direction and by the authority of the statute of the State of Illinois, providing for the construction of the Illinois & Michigan Canal, in force at that time; that Lock No. 5, Dam No. 1, together with a provision for the utilizing of water power at the east end of said dam on Lots 11, 12, 13, 14, 15 and 16, Block 37, in the Canal Trustees Subdivision, North East quarter of Section 9 aforesaid, together with the banks and the towpath constituting the border of the upper basin were all constructed by the authority of the Canal Commissioners, or by the Canal Trustees of the State of Illinois, prior to the year 1848 ; that on the 31st day of August, A. D. 1848, the then Canal Trustees of the Illinois & Michigan Canal acknowl- edged and afterwards caused to be recorded a plat showing their subdivision of said North East quarter of Section 9, Town 35, North, Range 10, East of the Third Principal Meridian, and that said Lock No. 5 and said Dam No. 1, and said lots in Block 37 of said Canal Trustees Subdivision afore- said,’ are all exclusively situate upon the North East quarter of Section 9, Town 35, North, Range 10, aforesaid, and that said canal, its bed, basins, banks, structures, locks, dams, water power rights, are now the exclusive property of the State of 5501 Illinois, and have been such exclusive property since the ter- mination of the trust estate, of the Trustees of the Illinois & Michigan Canal in the year 1871, and subject to such trust have been the exclusive property of said State since the con- summation of the grant made by Congress to this State of land for Canal purposes, and the construction of said canal; that the State is also the owner of all of Block 1 in said Canal Trustees Subdivision of the North East quarter of Section 9, Town 35, North, Range 10, East of the Third Principal Merid- 1683 ian aforesaid, and lias been such owner since the perfection of said congressional grant as aforesaid. (Des Plaines Eivek.) Fourth: And the court finds that said Desplaines flows through the Town of Lockport aforesaid, in a north and south direction, and enters the upper basin of said Illinois & Michi- gan Canal at the present time, at a point about 1,200 feet north of the south line of Section 3, in the Town of Joliet aforesaid, and at a place known as the towpath bridge, and that since the construction of the said canal, said river has entered said upper basin at substantially the same poin,t and that the said Illinois & Michigan Canal, including its bed, its banks, its basins, its locks and dams, and the provision for water power rights at the east end of Dam No. 1, has been continuously maintained in substantially the same location, and in substantially the same manner from the north end of Lock No. 4, southerly, through the upper and lower basins and the Channahon level of said canal, so far as the same ex- tends through the City of Joliet, in the same place and loca- tion as when said canal, its basins, locks, dams and structures were originally constructed and completed, and since the year 1848, in which year, the court finds that said canal was orig- inally opened for navigation. (Lease of Water Power Rights.) Fifth: And the court further finds that since the opening of said canal, there has always existed and been owned by the people of the State of Illinois, under the control of the Trustees of the Illinois & Michigan Canal, in the first instance and their successors, the complainants herein, a water power right at the east end of said Dam No. 1, which water power right has been leased under a lease hereafter referred to, since the year 1856, for the benefit of the People of the State of Illinois ; that there has existed since prior to the year 1864 a water power right for the benefit of the People of the State of Illinois, at both the east and west ends of Dam No. 2 aforesaid and that such right has been leased at the east end of said Dam No. 2 since the year 1864, and at the west emd of said Dam No. 2 since the year 1883 ; that on the Channahon level of said canal within the corporate limits of the City of Joliet, and at a dis- tance of half a mile south of said Dam No. 2, water is and has been drawn for power purposes as herein after found at three ditferent places, which waters so drawn have been under lease by the Canal Commissioners of the State for the benefit of the People of the State of Illinois since the year 1883. 1684 Consent Decree. — Continued. (Lease of Water Power at Dam No. 1.) That said icater poiver right at the east end of Dam No. 1 was leased by the then Trustees of the Illinois & Michigan Canal, hy a lease executed Jidy 17th, 1855, whereby the said lots numbered from 11 to 16 inclusive, in Block 37, in the Canal Trustees Subdivision, called North Joliet, together with the right of all water power existing at said dam, was demised for the term of twenty years, ivith a right on the part of the lessee to an extension or renewal of said terms upon the terms of said lease, on the expiration of the first term of twenty years, for a further term of twenty years, and with the right upon the expiration of the first renewal of said lease to the lessees to receive a further reneical for an additional term 5502 of twenty years, and that said lease commanded by its terms to run on the 17th day of July, 1856, and the People of the State through their agent, have been continuously receiving their rents from the water power at Dam. No. 1, and for said lost from the said lessees or their assigns from the date of said demise to the present time, and that said lease was at its expi- ratiom, renewed for a term of twenty years, which expired on the 11th day of July, 1896, and luas subsequently renewed in accordance with its terms and requirements for a second and final term of renewal expiring on July 11th, 1916, which second renewal is now in force and outstanding, and that said lease contained a provision to the effect that if by reason of any improvement, alteration or enlargement of the canal, the amount of water power thereby leased should be increased or diminished, the same should be adjusted between the parties by a corresponding increase or diminution of the rent therein reserved for said water power, upon the basis of said lease, and that said rental was increased in accord- ance with said provision as against the assignees of said lease, on to-wit: the 31st day of July, 1872, from $500.00 for the water power to $1,220.00 per annum for such water power. (Dam No. 2 East End Lease for Ten Years from October 3rd, 1896, Acquired by Sanitary District.) The court further finds that the lease was made of exist- ing water power at the east end of said Dam No. 2, so far as such power could be availed of by the then Trustees of the Illinois & Michigan Canal, to one Lorenzo P. Sanger, on the 12th day of September, 1864, and that said lease or new leases of water power at the east end of said dam, have been con- tinued and in force from the date of said lease to said Sanger, and that all of said water power at said east end of said dam No. 2, was on the ?>rd day of October, 1896, leased to the 1685 American Stone Company hy the Canal Commissioners of the State of Illinois, for a period of ten years, in conformity with the provisions and statutes relative to leasing water power, and by agreement the court finds that said defendant has duly acquired under the law of eminent domain the head and tail races of said power and duly acquired in the same manner the leasehold interest of said lessee, all of which was so acquired before March 1, 1898. (Dam No. 2 West End Lease for Ten Years from September 11th, 1883, x\cQuiRED BY Sanitary District.) That an existing water power right at the west end of the Dam No. 2 was utilized by leasing the same by the Canal Com- missioners to one John E. Bush in the year 1883, in conform- ity with the statute relative to leasing water power, for a period of ten years with the right of renewal thereof for ten years more; and that the said defendant has duly acquired under the law of eminent domain the head and tail races of said power and duly acquired in the same manner the lease- hold interest of said lessee all of which was so acquired before March 1st, 1898. That on the 11th day of September, 1883, the Canal Commissioners leased to the Northwestern Tile Company the right to take water from the Channahon level of said canal for the period of ten years, being a right to draw water according to the* terms of said lease on tlie Chan- nahon level of said canal for power purposes, discharging the same into the Desplaines Eiver, and that the use of said water so drawn from said Channahon level, under said lease has been continued by said lessee and its assigns, to the present time. (Other Leases.) The said Canal Commissioners on the 11th day of Septem- ber, 1883, leased to one James B. Speer and Frank H. Marsh the right to take water from the Channahon level of the Illi- nois & Michigan Canal, and' use the same for power purposes, discharging the tail water into the Desplaines Eiver by a lease executed in accordance with the statute of this State, and that said water so drawn from said Channahon level has been utilized under said lease by said lessees, or their assigns up to the present time. 5503 The court further finds that on the 11th day of Septem- ber, 1883, the Canal Commissioners leased to William M. Druley the right to draw water for power purposes from said Channahon level of said Illinois & Michigan Canal in accord- ance with the statute of the State of Illinois, whereby said lessees received the right granted by said lease to draw 1686 C on s en t Deere e. — C o fit in u ed. water from the Cliannahon level of said canal discharging it into the Desplaines Eiver, for power purposes, and that said water so drawn has been continuously drawn and in use by said lessee or his assigns since the date of the first granting of said lease, and that all of the water so drawn under said leases from said Channahon level of said canal has been drawn from the east side of said canal, so far as the discharge of the water is concerned, and at points where the differences in the level of the surface of the water in the Channahon level and the surface of the water in the Desplaines Eiver, at a point where they discharge the water used for water purposes therein is about 13 feet and has been substantially of that head since the granting of said water rights and the utilization thereof by the Canal Commissioners in the year 1883 as afore- said. (All Existing Water Power Eights Arose Prior to January 1st, 1889.) And the court expressly finds that all of said icater power rights were existing luater power rights prior to the first day of January, 1889, and prior to the passage of the act of the General Assembly entitled, ^An Act to create Sanitary Dis- trict and to remove obstructions in the Desplaines and Illi- nois Eivers,’ and prior to the approval of said act which ap- pears to have been approved on the 29th of May, 1889, and ex- cept as the same may have been acquired by the said defend- ant herein, prior to March 11, 1898, are and have been con- tinuously existing and in use as hereinbefore found. (The Sanitary District, its Creation and Purpose.) Sixth : And the court further finds that said defendant, the Sanitary District of Chicago is a municipal corporation or- ganized under the act of the Legislature of the State of Illi- noies, entitled ^An Act to create Sanitary Districts and to remove obstructions in the Desplaines and Illinois Eivers,’ approved May 29th, 1889, in force July 1st, 1889, and that the organization of said defendant was completed under the terms and conditions of said act about the 19th day of Janu- ary A. D. 1890; that said Sanitary District has proceeded to construct a main channel for the drainage of said District, extending substantially from a connection with the Chicago Eiver at Eobey street in the City of Chicago, in the County of Cook and State of Illinois, to the south line of Sections 14 and 15, in Township 36, North, Eange 10, East of the Third Principal Meridian, in Will County, Illinois, said township be- ing known as the Town of Lockport; and that a large portion of the work of the construction of said main channel has ]G87 been completed, and that said District has expended in the construction of said main channel and in and about the pur- poses for which it was organized the sum of about twenty- six million dollars before the commencement of this suit; that said main channel terminates near to the south line of Sections 14 and 15 in the Town of Lockport aforesaid; and that the slope mentioned in the 23rd section of said act under which said defendant is organized, as between Lockport and Joliet, and wherein it is provided ‘in case a channel is constructed in the Desplaines Eiver, as contemplated in this section, it shall be carried down the slope between Locknort ^lud Joliet to the pool, commonly known as the upper basin, of sufficient width and depth to carry off the water the channel shall bring down from above,’ commences at the termination of said channel near to the south line of Sections 14 and 15 in the Town of Lockport aforesaid, and terminates at the point where the Desplaines Eiver enters the upper basin as here- inbefore found; and that the plans of the Sanitary District provide for carrying the water discharged from said main 5504 channel between banks constructed by itself to a point near to the south section line between Sections 22 and 27 in said Town of Lockport, where said flow from said main channel is turned into the Desplaines Eiver and from thence follows the course of the Desplaines Eiver down to the point where the same enters the upper basin of said Illinois and Michigan Canal in Section 9, in the Township of Joliet aforesaid; and that by the terms of said act under which said defendant is organized it is required that a flow of water through the said channel shall be maintained of twenty thousand cubic feet per minute for each one hundred thousand inhabitants within the limits of said Sanitary District, and that the population of said Sanitary District is less than one million five hundred thousand people at the date of this decree, and that the re- quirements of said law at the date herein would require said defendant to provide for a continuous flow at the present time of not less than three hundred thousand cubic feet per min- ute. (Duty of Canal Commissioners to Preserve Navigation in Illinois & Michigan Canal.) Seventh: The court further finds that it is the duty of the Canal Commissioners to preserve the navigation of the Illi- nois & Michigan Canal; and that said defendant has no power or authority under its organic act to injure or destroy any ex- isting water power rights on said Illinois and Michigan Canal which were in existence at the date of the approval, to-wit: May 29th, 1889, and the taking effect of said act, to-wit: July 1st, 1889. 1688 Consent Decree. — Continued. (Increased Water Power Eights at Dam No. 1 Belong to THE State.) The court further finds that the amount of water which the channel of the Sanitary District is required by the terms of the act under which it is organized to cause to be brought down a slope between Lockport and Joliet into the upper basin of the Illinois & Michigan Canal, and the flow of which by the terms of said organic act it is required continually to maintain, will increase the amount of water flowing in said basin over Dam. No. 1 from about 40,000 cubic feet per min- ute to at least 300,000 cubic feet per minute, and will increase the power now being used at said Dam No. 1, to a very large extent; that the State of Illinois by virtue of said existing water poiver right at said Dam No. 1, and its ownership of the bed, banks and basins of said Canal, and said dam and locks at said Dam. No. 1, is entitled to use and utilize any increased power ivtiicli may he created at Dam. No. 1, by reason of any increase in the amount of water flowing through said upper basin. (Head of Water at Dams No. 1 & No. 2.) Eighth: The court finds that the mitre sill of lock 4 has been since the construction of said lock at an elevation be- low Chicago datum of minus 47.84 feet; that said Dam No. 1 when the water is at the crest of same is at an elevation of minus 42.4 feet and that ordinarily the depth of the water over the mitre sill of said lock 4 is no more than is neces- sary, requisite and reasonably safe to preserve navigation on the Illinois & -Michigan Canal, between locks Nos. 4 and 5 with said Dam No. 1 at its present height of 42.4 feet be- low Chicago datum; that the head of water under which power can be utilized since 1856 at Dam No. 1, is ten feet, and that the head of the water at Dam No. 2 under which power has been practically utilized since the granting of the leases as hereinbefore found, is practically 6 feet, and that the lease at Dam No. 2 called for a head of 7 feet. (Contract of Canal Commissioners with Sanitary District Beyond the Power of Canal Commissioners.) Ninth: And the court further finds, that the provisions of the agreement or contract executed by the complainant and the defendant of date March 11th, 1898, and a copy whereof is attached to the original bill and to the original answer in this case, so far as the same provides for or au- 5505 thorizes the construction of the new dam at the site of Dam No 1, u'ith the crest of such new dam at the elevation of 46 1689 feet or at any elevation lower than 42.4 feet below Chicago datum and so far as the same provides for a conveyance by the Canal Commissioners to the Sanitary District of Chi- cago of the title to lands is beyond the power of either of the parties hereto to make under the statutes of this State, but in other respects said agreement is authorized, valid and binding; that said defendant is given no power under the^ statute to occupy any portion of the Illinois & Michigan Caanl within the limits of the Countv of AVill in tlie State of Illinois, except to cross the same ; that such crossing must be made under the direction and supervision of the Canal Commissioners, and must be made in such a way as not to impair the usefulness of said canal and in such a way as not to injure the right of the State therein, and in such a way as not to injure or destroy existing water power rights, and the court expressly finds that said contract or agreement and the plans prepared for carrying out the work contemplated thereunder by said defendant, will impair the usefulness of said canal, and will injure the right of the State therein, and will unnecessarily greatly injure existing water power rights belonging to the people of the State of Illinois, ap- purtenant and belonging to said canal, and under the charge, care and control of said complainant. (Power of Canal Commissioners.) Tenth: The court further finds that said Sanitary District had power under its organic act, and the Canal Commis- sioners likeivise had poiver under said act, to agree as to the amount of compensation that should be paid to the Canal Commissioners for the benefit of the People of the State of Illinois for any property that might be necessarily appro- priated by the Sanitary District for the objects of its crea- tion; that the plan of the Sanitary District for the utiliza- tion of the upper and lower basins of the Illinois & Michigan Canal in the City of Joliet, as finally modified, requires the entering upon and acquiring a right of way over a portion of Block 1 of the Canal Trustees’ Subdivision entitled ‘North Joliet,’ hereinbefore referred to and for the erection of a temporary crib work in the upper basin as shown by the plan, and the erection therein of a permanent masonry wall extending from lock No. 5 northward in the upper basin to a distance of 500 feet; also for the erection of a new dam on the site of the present Dam No. 1 to a height of minus 46 feet below Chicago datum; and also for the construction of a crib work or temporary dam through the lower basin of said canal from Lock No. 5 to the guardlock at the head of the Chananhon level; and also for the permanent closing of the inlet to the Channahon level between the guardlock and 1690 Consent Deere e. — C o n tinu ed. Dam No. 2; and also for the building of a permanent ma- sonry wall extending from Lock No. 5 to a junction with the tow path of the canal, on the easterly side thereof near Jetferson street and south of the guardlock so as in effect to extend the Channahon level from its present terminus as located at the north end thereof, northerly through the pres- ent basin to Lot No. 5; for the excavation of said lower basin through its entire extent east of said permanent wall to a depth of minus 57 feet below Chicago datum at Dam No. 1, with a fall of 2 feet in each thousand feet to a point in the Desplaines River about 500 feet north of McDonough street bridge in the City of Joliet, which bridge is near to the cen- ter section line, east and west, of Section 16 in said Town of Joliet; and for the entire removal of said Dam No. 2; that such plans for such temporary crib work are sufficient and proper for the work sought to be done; that the plan for the wall extending northward from Lock No. 5 and southward from Lock No, 5 to the Channahon level is sufficient so far as construction is concerned; that the necessities of the case demand the removal of Dam No. 2 as contemplated in said plans, and also demands the excavation of said channel in 5506 the lower basin from Dam No. 1 through to Dam No. 2 and below that to the point where said excavation terminates about 500 feet north of McDonough street bridge in the bed of the Desplaines River to the depth and on the slope as contemplated by said plans, and as herein found, and that the same to the extent as herein found are proper and nec- essary under the organic act of said District. (Ckest of Dam No. 1.) Eleventh: The court further finds that the crest of said Dam No. 1 or any structure to be erected to take its place, cannot safely he placed at a less height than the crest of the existing dam, to-wit: at a height of 42.4 feet below Chicago datum; that said District has no power or authority to in- jure or destroy evisting water power rights, and that the lowering of the crest of said Dam No. 1 to minus 46 feet below Chicago datum as contemplated in the proposed plans of said District would interfere with navigation upon the Illinois & Michigan Canal, and would also interfere with existing water power rights of the State of Illinois at Dam No. 1; and that said proposed plans so far as they relate to . supplying the Channahon level are insufficient to supply to said level the quantity of water required for the naviga- tion of said canal below said guard No. 5 and at the same time to supply water now and heretofore used b^^ said water powers on the said level after compensating for the loss to said powers, consequent upon the loss of head thereto by 1691. reason of the increased flow of water in the Desplaines Eiver below Dam No. 1. (Payment of $7630.00 to Canal Commissioneks a Eeason- ABLE Compensation.) Twelfth: The court further finds that on the tenth day of August, 1898, said defendant paid to Howard 0. Hilton, the sum of $7,630.00, as compensation for so much of Lots 1, 2, 3, 4, 5 and 6, Block 1, in North Joliet as might be ap- propriated by said defendant for the use of its channel, and as compensation for the property of the State, parcel of the said Illinois & Michigan Canal proposed to be used by said defendant in and through the lower basin of said canal, and that said sum of $7,630.00 was received by said Howard 0. Hilton as a tender by said defendant of such compensation, that such sum was a reasonable, just and proper amount to be paid by said defendant to said complainant for the pub- lic property used by said defendant, that said Hilton was at said time Treasurer of the Canal Commissioners, and had power and authority to receive said money, and that his re- ceipt thereof was and is a payment of such amount to said Canal Commissioners and to the State of Illinois. And the court finds that the real estate for ivhicli said pay- ment was made is described as follows: All that part and portion of said Bloch one (1) in North Joliet aforesaid which lies ivithin the boundary lines of the proposed channel of said defendant as now there located, which proposed channel, as now there located is three hun- dred feet ivide, and the centre or middle line thereof is lo- cated and described as follows that is to say: — Beginning at the point of intersection of the east line of Section Four (4), Township Thirty-five (35) North, Bange Ten (10) East of the Third Principal Meridian, and a line parllel to the westerly reserve line of the Illinois and Michi- gan Canal, said parallel line being four hundred and seventy- five (475) feet distant from said westerly reserve line meas- ured at right angles ; running thence southwesterly along said parallel line for a distance of eight hundred and sixteen and twenty-nine hundredths (816.29) feet to a point of curve; running thence on a curve to the left of said curve having a radius of fourteen hundred and forty-nine (1449) feet for a distance of ten hundred and two and thirteen hundredths (1,002.13) feet to a point of reserve curve; running thence on a curve to the right, said curve having a radius of six 5507 hundred and twenty-eight (628) feet for a distance of four hundred thirty- three and six hundredths (433.06) feet to a point of tangent. Also all that part of the Southeast Quarter (S.- E. 1/4) 1692 Consent Decree. — Continued. of Section Nine (9), Township Thirty-five (35), North, Range Ten (10) East of the Third Principal Meridian; lying west of the center line of Joliet street produced, east of the Des- plaines River and north of the north line of Reed street in the City of Joliet. Also that part of Lot Two (2), Block Three (3), Old Town of Joliet lying east of the east wall of the Illinois and Michi- gan Canal. Also a certain tract of land in the Southeast Quarter (S. E. 1/4) of Section Nine (9), Township Thirty-five (35) North, Range Ten (10) EasLof the Third Principal Meridian, north of Jefferson street, west of the Desplaines River and east of a line fifty-six (56) feet distant from and parallel to the center line of the Illinois & Michigan Canal, said center line running through a point, in the south line of Block six- teen (16) West Joliet produced one hundred and seventy (170.0) feet distant from the southwest corner of said Block and forming an angle of ninety-five (95) degrees and fifty (50) minutes with said south line, measured from north to west. Also part of the Southeast Quarter (S. E. 1/4) Section Nine (9) Township Thirty- five (35) North, Range Ten (10) East of the Third Principal Meridian described as follows: All that part of Blocks three (3) and eight (8), and all that part of Benton street, Desplaines street and Webster street. Old Town of Joliet, lying west of the east wall of the Illinois and Michigan Canal. The above described prop- erty being situated in the Townships and City of Joliet, in the County of Will and State of Illinois. And the court further finds that in addition to compensa- tion for the use of the real estate above described, the said sum of $7,000.00 included compensation for the suspension for one year for the use of existing water powers leased by said complainant on the Illinois & Michigan Canal to its tenants. Thirteenth: That on the 15th day of August, 1898, an injunction was issued hy the order of the judge of this court in vacation upon the original bill in this case, enjoining and restraining said defendant and the agents, servants, attor- neys, solicitors, officers, employees and contractors of said defendant, or any person connected directly or indirectly with said defendant or under its control or supervision, from in any manner taking possession of or interfering with the possession of the Canal Commissioners in and to Lots one (1), two (2), three (3), four (4), five (5) and six (6), in Block One (1) in North Joliet, in Section Nine (9), Town- ship Thirty-five North, Range Ten (10) East of the Third Principal Meridian and lying west of the upper basin of the Illinois and Michigan Canal, and from in any manner tak- 1693 ing possession of or interfering with the possession of the Canal Commissioners in and to a tract of land situate in the City of Joliet in Will County, State of Illinois, located north of Jetferson street in said City of Joliet, and lying between the lower basin of the Illinois and Michigan Canal and the guard lock and level of the said canal running south from said guard lock, and from in any manner taking possession of or interfering with the possession of the Canal Commis- sioners in or to any of the lands, beds, banks, basins, dams, locks or any property pertaining to the said Illinois and Michigan Canal belonging to the State of Illinois and under 5508 the charge of the Canal Commissioners, and from remov- ing any dam, or building any structure upon or excavating any part or portion of any Ijasin or channel of the Illinois and Michigan Canal, and from in any way interfering with the Canal Commissioners in the exclusive control, manage- ment, operation or use, of said Illinois and Michigan Canal, its bed, basin, locks, dams, banks, or any other property, real or personal, appertaining or belonging to said canal. Fourteen: The court further finds that the plans and spe- cifications submitted by the defendant to the complainant, on June 20th, 1898, are adequate and sufficient for the works proposed by them, and are in compliance with the contract of March Ilth, 1898, but are not in compliance with the re- quirements of the statute providing for the crossing of the Illinois & Michigan Canal, contemplated by such plans. Fifteenth: And the court further finds that it has juris- diction of the persons of the parties, complainant and de- fendant herein, and of the subject matter of this suit, and that the complainant is equitably entitled to relief under the pleadings and proofs herein. It is therefore ordered, adjudged and decreed by the court, First. That the contract or paper ivriting of March 11th, 1898, a copy whereof is attached to the original bill herein, and which purports to have been executed by the complain- ant and the defendant, to the extent herein found, is in ex- cess of the poiver of either the complainant or defendant to execute, and to the extent so found is of no binding force or effect, but in other respects is authorized, valid and binding. Second. That said complainant and defendant have the right to agree as to the amount of compensation to be paid and received for the use of any property of the People of the State of Illinois, parcel of the Illinois & Michigan Canal, and that the sum of $7,000.00 for the appropriation by said defendant and the use of said lots fronting on Jetferson street, and in the east side of the lower basins of said Canal, and for suspending for one year the use of existing water power, leased by said complainants, all the property of the state, and the further sum of $630.00 for so much of the lots 1694 Consent Decree. — Continued. in Block 1 in North Joliet, as said defendant proposes to take and appropriate hereinbefore described, are just and adequate compensation for such property y so proposed to be taken, and water power so temporarily suspended by said Sanitary District, and belonging to the State for the use of an outlet to its main channel, and that the sum of $7,630.00 paid to Howard 0. Hilton on the lOtb day of AugTist, 1898, was a sufficient payment for the use of such lands and lots and ioroiDerty, and temporary deprivation of said complain- ant of the rental of water power and was made to the proper person by said defendant. Third. That said defendant he, and it is hereby perpetu- ally enjoined and restrained from in any manner directly or indirectly injuring or destroying the existing ivater power rights of the State of Illinois at Dam No. 1 aforesaid, and that it be and is hereby perpetually enjoiend and restrained from proceeding to erect any dam or structure in place of jlam No. 1, which shall not have a permanent crest at a height equal to the permanent crest of Dam No. 1 at the date hereof, to-wit: 42.4 feet below Chicago datum; that it be enjoined and restrained from in any manner decreasing the head of water for poiuer and navigation purposes now ex- isting in the Channahon level of the said Illinois & Michi- gan Canal and herein found to be under ordinary and usual 5509 conditions about 13 feet, without compensating therefor by an increased flow of water into said level, equivalent to said loss of head; that it he enjoined and restrained from inter- fering with the water power at Dam No. 2 and with Dam No. 2, except upon condition that it do furnish and supply proper and necessary facilities for the development of a power equal to that existing at said Dam No. 2 at some other place, and that it be enjoined and restrained from building any structures providing for an inlet of water into the Chan- nalion level of the canal, except upon conditions that the structures he sufficient to preserve navigation on the Illi- nois & Michigan Canal, and the use of the water therefor as now used and provided for, -including a flow of water to supply the lower levels of said canal from said Channahon level, and unless it also provides in addition to such flow, as may he required for navigation, such an amount of water for use on said Chananhon level for power purposes as shall conform to the finds and requirements herein as to same; and that such perpetual injunction shall extend to and be operative as against said defendant the Sanitary District of Chicago and any and all persons, firms or corporations, acting or pretending to act by any authority of said defend- ant, whether such authority be direct or indirect. Fourth. It is further ordered, adjudged and decreed by the court, that .laid defendant he enjoined and restrianed 1695 from in any manner entering into the lower hasin of said Illinois & Michigan Canal, or appropriating the same or any part thereof to its uses, except on condition that it do ex- cavate to a width sufficient to carry the flotv of its channel, and to a depth at Dam No. 1 of not less than 57 feet below Chicago datnm, and continue such excavation to such depth of 57 feet below Chicago datum with such additional depth, through the said lower basin and to a point not less than 500 feet north of McDonough street bridge, situate near the center east and west line of Section 16, Town 35, North, Eange 10, East of the Third Principal Meridian, as will be created by a slope of such channel of two feet in each thou- sand feet in length southerly from Dam No. 1, said slope commencing at said Dam No. 1, and at a depth of 57 feet below 'Chicago datum. Fifth. It is further ordered, adjudged and decreed, that a perpetual injunction issue out of and under the seal of this court commanding and enjoining said defendant, its agents, servants, contractors, employees, attorneys, solicitors and all other persons claiming to act under or by authority from defendant in any way, directly or indirectly, as is above stated, and that the temporary injunction heretofore issued in this cause, by order of one of the judges in this court in vacation, be and the same is hereby modified, so that the same shall be enforced and applicable to the extent speci- fied in this decree, adjudging a permanent injunction as against said defendant and no farther. It is further ordered that the defendant, the Sanitary Dis- trict of Chicago, pay its costs made in this case to be taxed by the clerk of this court. And now on this 3" day of November before the settling of the terms of this decree and the signing of the same, the defend- ant, by its solicitors, here presents to the court its petition for a rehearing in this case, together with the affidavit of Thomas T. Johnston in support of the same, and here now moves the court for a rehearing of this case. And the court having heard argu- ments and being fully advised in the premises doth override said petition and motion for a rehearing, and denies said 5510 rehearing. To which ruling of said court in denying a re- hearing of said case said defendant by its solicitors then and there excepted. And the defendant here notv in open court prays an appeal to the Supreme Court of Illinois, which appeal is granted with- out bond. And the defendant is hereby given and granted sixty 1696 Consent Decree. — Continued. days from and after this date within which to present its cer- tificate of evidence herein. (To which order and decree of said court, except that part thereof overruling said petition, for a rehearing, the said complainant also now here excepts and prays an appeal to the Supreme Court of the State of Illinois, without bonds; which is granted by the court, and leave is given to said complainant to present and file a certificate of evidence here- in, the same to be presented within sixty days, from this date.) 5511 Beaxch Court of the Will County Circuit Court Of the September Term, A. D. 1898. Thursday, November 3rd, 1898. Court opened by proclamation of sheriff. Present : — • Hon. Eobert W. Hilscher, Judge, Prank Vander Bogart, Clerk, John Francis, Sheriff, and William I). Heise, State’s Attorney. Attest : — Frank Vander Bogart, Clerk. The Canal Commissioners 17312. -i;- The Sanitary District of Chicago And now on this 3" day of November before the settling of the terms of this decree and the signing of the same, the defendant, by its solicitors, here presents to the court its petition for a re- hearing in this case, together with the affiadvit of Thomas T. Johnston in support of the same, and here now moves the court for a rehearing of this case. And the court having heard argu- ments and being fully advised in the premises doth overrule said petition and motion for a rehearing, and denies said re- hearing. (To which ruling of said court in denying a rehearing of said case said defendant by its solicitors then and there ex- cepted.) And the defendant here now in open court prays an appeal to I Bill for Injunction. 1697 the Supreme Court of Illinois, which appeal is granted without bond. And the defendant is hereby given and granted sixty days from and after this date within which to present its certificate of evidence herein. (To which order and decree of said court, except that part thereof overruling said petition, for a rehearing, the said complainant also now here excepts and prays an appeal to the Supreme Court of the State of Illinois, without bonds ; which is granted by the court, and leave is given to said com- plainant to present and file a certificate of evidence herein, the same to be presnted within sixty days, from this date.) 5512 Counsel for Complainant. Now, if your Honor please when very rapidly they were giving the testimony of Mr. Munroe, he testified thus: When did you first become identified with this project to build a dam on the Desplaines Kiver somewhere in the neighborhood of the Illinois! A. In the spring of 1904. Q. Had you any connection at that time of any nature with the Economy Light & Power Company! A. No, sir. Q. What was the first time you had any negotiations with the Economy Light & Power Company in reference to this project! A. In May, the latter part of April or the first week in April, 1906. Q. In the meantime, you had acquired flowage rights or ownership to a large proportion of this property shown on Woermann’s Exhibits 1 and 2, had you not! A. I had ac- quired title to all the property, tracts for title — ’’ I sup- pose that means contracts, it is written tracts here — ‘‘Contracts for title to all of the property shown in colors on those two exhibits and had made all financial arrange- ments for constructing the power house and dam at the mouth of the Desplaines Elver.” 5513 Later your Honor held that they would have to produce a deed, and they offered a sheet of blank paper as the deed with the understanding that they might bring it in later. Now, if your Honor please, with reference to that, I ask this: is it admitted or understood or stipulated that the title to the prop- erty in Sections 25, 34, 8 and Section 36, 34, 8, being the title to the property at the site of the dam, was acquired by the Economy Light & Power Company at this same time, November 30, 1906. 5520 Thereupon it was admitted by the defendant that the de- fendant acquired title to the property on each side of the 1698 river at tlie site of the dam in Sections 25 and 36 respectively, both in Township 34 North, Eange 8, hy deed from Harold T. Gris- wold on Xovemher 30th, 1906, and that said Griswold acquired title to said property on each side of the river as trustee for Mr. Charles A. Munroe and Mr. Frank G. Logan, and that the said Mr. Griswold referred to first began to acquire interest by means of contract in the spring of 1904, which afterwards ripened into title. Some titles were taken in Mr. Munroe ’s name directly, but what- ever was taken in Mr. Munroe ’s name or whatever was taken in Mr. Griswold’s name were all conveyed finally to the Economy Light & Power Company by said deed on November 30, 1906. Thereupon counsel for complainant read supplemental extracts from Government reports introduced by counsel for defendant as follows : The report of 1867 of General James A. Wilson on page 6, paragraph 4, as follows : 5522 ‘‘There is no doubt that dredging along, or, at most, dredg- ing and a feeder from the lake, can be made to answer every j^urpose in the improvement of the Illinois River, if it is to be considered as independent navigation of no other than local importance; but it must be remembered that this river is not the exclusive property of those living on its banks. It forms already an important link in a network of river navigation, extending, with its various branches, through seventeen states of the Union, and is destined at no distant day to become the great commercial highway be- tween the productive states of the west and northwest and markets of the world.” And paragraph 3 on page 8 of the same report : “It is quite evident, from what is already known, that steamboat navigation can be more cheaply provided between ■ Lockport and LaSalle by following the line of the river than by enlarging the canal.” And in the same report appended is the report of Assistant S. T. A belt from which some extracts were read, and to which I de- sire this extract also to be added. Page 28, paragraph 6, and page 29, paragraphs 2, 3 and 6: 5523 “The sources of the river being in a lower latitude than any of its rivals, this advantage increases as the river ad- vances in its course, and, as a consequence, less obstruction to navigation, and less damage to works of improvement may be anticiiiated from the length of the winter and the breaking ' up of ice in the spring.” 1699 Page 29, paragraph 2 : more important advantage belongs to tlie Valley of the Illinois ; upon it alone is a navigation practicable for the larg- est steamers, by the completion of which a union will be ef- fected with the best navigable conditions of the western rivers, possessing an aggregate length in their main channels 12,000 miles, exceeding in their collateral channels and tribu- taries 39,000 miles, and draining an area of 911,000 square miles, with 90,000 square miles of lake surface, bearing a com- merce of 413,000 tons burden.” Paragraph 3 : ^‘It possesses another advantage, almost exclusively its own. The two most opulent cities of the west are found at its terminii.” Paragraph 6 : ‘‘The real importance of this improvement can only be es- timated by regarding it as completing a system of water com- munication between the east and the west, of which the Os- 5524 wego and Erie Canals, constitute essential parts.” Then from the report of 1883, the survey of Major W. H. H. Benyaurd, reported in the report of the Chief of Engineers, 5525 1884, part 3, appendix H. H. on page 1959, paragraphs 2 and 3 : “As stated in my premilinary report under date of Sep- tember 2, 1882, I had intended instituting a comparison be- tween the cost of enlarging the Illinois and Michigan Canal between Joliet and La Salle, and that of improving the rivers between the same points; but as the survey of the latter was not at that time authorized, I merely confined my report on the Illinois & Michigan Canal to the cost of enlargement throughout its entire length, and without making any change to the river route. The additional cost of the river route in the first instance would be offset by the lesser amount that would be required for maintenance, repairs, and so forth, as the long line of canal, with its aqueducts, feeders, weirs, and so forth would be a constant source of expense. The river route has also the advantage, when it is considered that we have navigation on a stream 600 feet wide instead of the nar-' row channel of the canal. Looking at the matter in an engineering point of view, it is difficult to understand what led originally to the construc- tion of the canal, rather than the improvement of the natural channel of the river. Should the Illinois and Michigan Canal be accepted by the Government, and its enlargement under- 5526 taken, that part between Joliet and La Salle would be aban- doned and the river route between these points_, adopted.” 1700 Benyaurd Rep. — Eng. Rep. 1883. — Continued. On the preceding page, paragraph 4: ‘‘The rivers have an average width of about 600 feet, with banks from 8 to 23 feet in height above low water, so that within ordinary stages the stream flows within fixed banks.” Then the report of the Comstock Board in 1886, report of the Chief of Engineers for the year 1887, part 3, appendix 2, W. C. Endicott, Secretary of War, page 2125, last paragraph: “The report of the Board of Engineers shows that to en- large the canal between Joliet and La Salle, and provide for an increased navigation, equal to that contemplated by the improvements in progress on the Illinois Eiver, between La Salle and its junction with the Mississippi, would require an expenditure of money greater than the cost of improving the river itself between Joliet and La Salle. If such is the case, the river route should be improved as recommended. The conclusion, therefore, would seem to be clear that the United States should not be bound to enlarge the existing canal between La Salle and Joliet, if the improvement of the Illinois Eiver between those places will furnish a cheaper mode of communication, nor to maintain any portion of the canal, the abandonment of which may become necessary or de- 5527 sirable in the future.” And appended thereto the report of the Chief of Engi- neers, C. Duane, page 2127, paragraph 2: “With reference to the conditions in this act of cession re- garding the enlargement of the canal, I would remark that the locks and dams that have been and are to be, built by the United States below La Salle, have been projected with a view to a steamboat navigation of the first class, and the project looks to a continuation of navigation upon the same scale between La Salle and Joliet, and since a cost of an enlarge- ment of the canal between these points would it appears, be greater than that of the improvement of the river itself, a river route between these points should be adopted.” In the same volume, the report of the Board of Engineers on this subject, page 2129, paragraph 3: “The waterway from Chicago to Grafton, on the Missis- sippi Eiver, is a most important one; and when completed there is little doubt that it will richly pay for itself in the reduction and regulation of freights.” And then in House Document No. 263, published in 1905, the passage on pages 8 and 9 immediately preceding the paragraph read by the defense, “Present improvements: The total distance from Lake 1701 Michigan to Grafton and the mouth of the Illinois is 327.28 5528 miles. Beginning in Chicago River, 6 miles from the lake, the Illinois and Michigan Canal extends to La Salle, near the head of navigation on the Illinois, a distance of 96.7 miles. This canal has lost its traffic to such an extent that it has ceased to produce a revenue, and is falling into decay, which bids fair to soon become total. It is barely navigable for vessels drawing 41 feet. For certain purposes it has been re- placed as far as Lockport by the Chicago Drainage Canal, as will appear further on. Below LaSalle the Illinois River has been improved by the State of Illinois, with lock and dams at Henry and Copperas creeks, covering a distance of 87.7 miles, over which the State charges tolls. The remaining 136.8 miles to Grafton has been improved by the United States with locks and dams at Lagrange and Kampsville. The project under which the work of the State and of the United States was done in the Illinois River contemplates a depth of 7 feet, the locks being 350 feet by 75 feet. Much dredging remains to be done to complete this project in the Illinois River. It was in- tended to extend these dimensions of waterway to Lake Michi- gan to replace the obsolete canal, but when the State of Illi- nois decided to authorize the Chicago Drainage Canal it aban- doned the project for a 7-foot navigation and directed the removal of its dams in the Illinois River, at the same time demanding that the dams constructed by the United States be removed. It declared in favor of a channel to be con- structed by the United States not less^ than 14 feet deep from the end of the Drainage Canal at Lockport to LaSalle, Ho be designed in such manner as to permit future development to a greater capacity.’ (See joint resolutions adopted May 28, 1889, and May 27, 1897, copies hereto appended. Appendixes B and C.) None of the dams have as yet been removed, but by joint resolution approved April 21, 1904, Congress authorized the Sanitary District of Chicago, at its own expense, to lower the Government dams, and on the 23rd of May, 1904, permission was granted by the Secretary of War to that body to lower the dams 2 feet, upon condition that it install such movable crests as should enable the dams to be maintained at their present height during low water and upon the further condi- tion that it hold the United States harmless from any claims for damages which might result from the operation of these movable crests.” That' is ending on page 9 immediately preceding the heading ^‘Chicago Drainage Canal.” And on page 12, the first paragraph immediately preceding what was read on the other side; ^‘The introduction of dams in the portion of the route where dams will 1702 Report 1905 , — House Doc. 263. — Continued. be required.” To secure the prescribed depth as a tendency to fur- ther increase the overflow. To keep this at a minimum it is pro- posd to make the dams of the movable type, which shall have no effect upon the water service at low and medium stages. Then one paragraph on page 16: ‘^As already stated the pro- posed dams are to be of the movable type.” For the purpose of estimates the Channoine wicket type is adopted without service bridge and without regulating bear traps. The entire width of the river is closed by a continuous line of Channoine wickets'. The details are shown upon the accompanying drawings. 5529 And on page 45, and running over on the top of page 46 is a description of the operation of the Chanonine Dam. It seems to me that that was all read. Thereupon counsel for defendant objected to the introduction of said extracts from said engineer’s reports on the ground that they were presented too late. After some colloquy between counsel, particularly in reference to the Wilson report, the report of the Comstock Board and the report of the Chief Engineer Duane, the court thereupon 5535 ruled that the last extract from the report of the United States for 1905, which had been used by the defendants, be 5538 admitted in evidence, and the balance of extracts be ex- cluded. Thereupon counsel for complainant offered certain passages from the canal report of 1900. 5541 Counsel for defendant, suggesting that the entire book be admitted in evidence, the court ordered that the entire book should go in. (App. II, page 3907 ; Trans., p. 6337 ; Abst., p. 1855.) Counsel for defendant then read in evidence part of Appendix X from the report of Major MacKenzie, part III, 1886, following immediately after the report of E. E. Lee, from which counsel for complainant read beginning on page 1438, also on page 5542 1440, 1441, 1442, to page 1528, also from the annual report of the Chief of Engineers of the Army, part II, 1882, Ap- 5543 pendix X, beginning on page 1895, also on page 1899. 1703 5544 Survey of Lieutenant G. K. Warren. Page 1438. In 1853, under direction of Lieut. Col. S. H. Long, a survey* of the Rock Island Rapids was made by Lieutenant Warren, the report of which was transmitted to the House of Rep- resentatives May 20, 1854. From Lieutenant Warren’s report we gather the following: ‘‘Louisville, Ky., April 6, 1854. Sir: Having completed the drawings of the rapids of the Missis- sippi, constructed from surveys made by order of Lieut. Col. S. H. Long, I have the honor to submit this report on the subject. The instructions required such surveys at the lower rapids (Des Moines), and at the upper rapids (Rock River), as were necessary to determine the best and most economical route along the bed of the river for forming a continuous navigable channel, 200 feet wide and 4 feet deep at the lowest stages. It is hardly necessary to state that this required an entirely new survey, the maps made in 1837 by Lieutenant Lee being on too small a scale to exhibit the character and extent of the channels and their obstructions. The time was 5545 too limited with the means at hand for a thorough survey of the river-bed, and it wms determined, after a careful examina- tion and consultation with some of the ablest pilots, to con- fine the more accurate survey to the vicinity of the channel now navigated. This channel is undoubtedly the most prac- ticable one for improvement. ^ ^ ^ # Upper Rapids. — These, beginning at half a mile above the lower end of Rock Island, extend 13 miles up the river. The principal reefs are known as Lower Chain (at foot of rapids). Rock Island Chain (2 miles from foot). Duck Creek Chain (4^ miles from foot), Campbell’s Chain (74 miles from foot). Saint Louis Chain (10 miles from foot) ; Sycamore Chain (12 miles from foot), and Upper Chain. Unobstructed spaces inter- vene between these chains, the greatest being 2 miles, between Campbell’s and Saint Louis Chains. Much of the rock is a very friable limestone, and when quarried breaks up in the smallest pieces. A very soft yellow sandstone is also common and a little slate. Large granite boulders are found in many places. Owing to the softness of the rocks composing the reefs, they have been much more worn away and dislocated by the ice and currents than at the lower rapids, and do not form as great an obstruction. Small steamboats drawing 24 feet, of water pass them at the lowest stages towing their barges. The navigation, however, is attended with great risk, and 1704 Rock I si. Rapids, Warren Rep.— Eng. Rep. 1886. — Con. every year that has low water sees several steamboats sunk 5546 and other seriously injured. Duck Creek and Campbell’s chains are particularly danger- ous. The current is moderate at both (about 3 *miles per hour), but the boat to avoid the prominent rocks is required to make such sudden turns as cannot often be performed, especially bv steam-wheel boats. These two chains claim the earliest attention. Sycamore and Upper chains should have the next. Rock Island chain is a continuous flat reef across the riverbed, with a low-water depth of 24 feet. To make 4 feet a cut through it 600 feet long will be required. The water was raised here about 10 inches by building the dams connecting the islands with the Illinois shore. The width of the river was thus considerably reduced. In the narrowest part if is but 400 yards wide. The average width of the rapids is about half a mile. * * * The chutes behind Campbell’s and Fulton’s Islands are not navigable, and could not be made so as easily as the channel now used. But slight benefit would result from closing them. The only method of improving the upper rapids is to remove the rocks that now obstruct the channel and close some of the side chutes whose tendency is to produce cross-currents. The following tables show the amount of rock to be removed to make the present channel 4 feet deep. 5547 Davenport, Iowa, December 20, 1866. Sir : In obedience to your orders of the 5th of October, 1866, * ^ I have the honor to submit the following report, with the accompanying drawings: I left Keokuk, Iowa, on the 6th of October, 1866, arriving at Davenport, Iowa, the next day, and immediately com- menced organizing my parties, and ia order that the work might be pushed forward with the greatest dispatch consist- ent with the importance of the work, and inasmuch as the season for work would be of short duration, I put into the field all the force that could work to advantage. The hydrographic party was placed under the immediate charge of Mr. J. E. Abbott, civil engineer. Their work in- cluded all that related to the topography of the bed of the river, and other information concerning the flow of the water over the rapids. A large party was placed under the charge of Mr. W. D. Clark, civil engineer, with a view of making an accurate sur- vev of the valley on both sides of the river, showing the meandering of the shores and gathering all other information necessarv for the investigation of the several projects for the improvement of the navigation on the upper rapids. Lines 5548 of levels were run on both shores from a point about 4 miles 1705 below Eock Island to a point about 4 miles above LeClaire; perpendicular offsets connecting with the main line at vari- ous distances from 50 to 500 feet apart, according to the changes in the general feature of the shore, were run. As the time allowed us would not warrant an entire re- survey of the bed of the river, and moreover, as Greneral War- ren’s map, wherever tested, proved to be sufficiently accur- ate, I caused Mr. Abbott’s party to restrict themselves at first more particularly to a thorough examination of the bottom on the chains, in order to get the most accurate possible data for estimating the amount of rock excavation necessary to make a channel of 200 feet width and 4 feet depth in low water. A favorable season has, however, enabled us to accom- plish more hydrographic work than could reasonably have been anticipated. The upper or Eock Island Eapids begin at a point near the lower end of Eock Island, and extend 14.26 miles up the river to a point near the lower end of the town of LeClaire. The bed of the river throughout this entire distance consists of a hard surface of limestone rock, worn in many places into deep furrows by the long continued action of the water and the material washed along the bottom. This rock crops out 5549 along the shores, and is generally found stratified in thin layers. The lower strata in the bed of the river appear t(> be harder, and of different thicknesses — from 4 inches to 2 feet and upward. There are also a number of large, erratic boulders of granite to be met with, but these, as a general thing, do not prevent serious obstructions, but in some cases as at Campbell’s Chain, they rather serve as guide marks for pilots, who would protest against their removal on that account, unless replaced by other equally permanent marks. The only difficulty in the way of navigating the rapids con- sists in passing over the chains, of which there are seven, viz. : the upper or Smith’s Chain, Sycamore, Saint Louis, Camp- bell’s, Duck Creek, Moline and lower chains. At these places the rocky bed of the river projects out from each shore like a bar, the projecting points sometimes overlapping each other, leaving only a narrow, tortuous channel between them, and in some instances extending like a dam or rocky bar en- tirely across the river. Between the chains, throughout almost the entire distance, is a wide and navigable channel, with plenty of water for boats that navigate the upper Mississippi and at such places the velocity of the current is much less than on the chains. Between the head and foot of the rapids, a distance of a little more than 14 miles, nearly eleven miles, are good navi- gation in the lowest stages, the obstructed portion covering a 5550 distance of only more than 3 miles. * * * The steamboat channel, beginning at the head of the rapids. 1706 Rock I si. Rapids, Warren Rep. — Eng. Rep. 1886. — Con. runs in close to the Iowa shore, with plenty of water till it strikes the upper chain, generally called by pilots Smith’s Chain; here the channel is narrow, crooked and the current swift, having a velocity of more than 3 miles an hour. A large reef or rocky bar, known as Asprey Patch, stands in the middle of what would otherwise be a wide channel. This chain is not considered, however, as difficult or dangerous as most of the others. Passing Smith’s Chain, the channel inclines gradually to- wards the Illinois shore, until it comes to Sycamore Chain, which is conceded to be the most difficult place to pass on the whole rapids. Here the rocky ledges project out from each shore, leaving between them only a narrow and crooked waterway. The current being swift and the turns short, boats in passing are exposed to strong cross-currents, which tend to sweep them on the lower ledge; besides, in one of the sharp bends a deep pocket has been cut, and a large amount of water runs through it, which, by its action, tends to draw boats into it, where they sometimes become fastened, and to extricate them involves a loss of much time, and is a labor of great difficulty. The difficulties at Sycamore Chain are not the result of a want of sufficient depth of water, for there is a good depth 5551 in the channel, but they rise from its narrowness and crook- edness, together with the strong cross-current that sweeps over it. After passing Sycamore Chain, the channel runs close to the Illinois shore, passing inside of Crab Island, where it be- comes very narrow, and then inclines toward the Iowa shore until, at Saint Louis rocks it reaches a point about mid-way between the Illinois shore and Fulton’s Island. Passing the Saint Louis rocks, it again inclines toward the Illinois shore until it reaches Saint Louis Chain, where the channel becomes narrow again, but boats that pass the chains above or below this seldom experience great difficulty here. Below this chain the channel oi:>ens up gradually into a stretch of 3 miles, per- fectly navigable at all times. In front of Hampton the cur- rent becomes quite sluggish. Opposite the head of Campbell’s Island the channel crosses ’Campbell’s Chain, which is not only crooked and exposed to cross-currents, but the rocky ledge extends entirely across the river. In the channel pursued by steamboats across this chain the water is not much deeper than on either side of it. The slough behind Campbell’s Island is not used for navi- gation. After passing Campbell’s Chain, with the exception of the 5552 rocks near Winnebago Island, which are somewhat of an obstruction, the channel is wide and easily navigated until it comes to Duck Creek Chain, nearly 3 miles below. Here it 1707 is crooked and narrow, so nmcli so as frequently to necessi- tate the use of anchors at low water for the purpose of work- ing boats through. This is another difficult chain to pass through. Below Duck Creek the channel widens out again, giving good navigation, with the exception of one narrow place for about 2 miles, when it comes to Moline Chain. Here again the ledge of rock extends entirely across the river, and forms in low water an impassable barrier to boats, drawing more than 30 inches. The water passes over this chain at a mean surface velocity of 3.878 feet per second at low water, and a maximum velocity of 5.0545 feet per second, as determined by actual observation with floats. The dams of Moline and Benham’s Island cut oft a large body of water that would otherwise flow out of the main channel, and the universal testimony of the pilots estab- lishes the fact that they have raised the water on this chain some ten inches. It is generally conceded that the naviga- tion has been materially benefited in low water, but the in- creased volume of water has no doubt increased the velocity of the current, also. During the low stages, however, when the velocity of the current is less than at high water, this 5553 increase is of little account in comparison with the ad- vantages of getting the increased depth. From Moline Chain the channel widens out again, becomes deep, inclining towards the Iowa shore, and is perfectly navigable for the largest boats on the upper Mississippi un- til it comes to the lower chain. The channel here is very crooked, but the current is not so swift as on some of the other chains, and consequently not so difficult to pass. This chain is about half a mile above the Chicago and Rock Island Railroad bridge, and no more natural obstructions present themselves below this point in the ordinary low stages. * * The average length of the boating season is about 260 days. During the winter, as a matter of course, navigation is closed by the ice. When the river is opened to navigation, about one-third of the whole time is rendered dangerous by the shoalness of the water on the rapids, and sometimes impassable for boats drawing more than 2 feet. In the year 1864 the water was lower than has been known before in many years, attaining its lowest point September 2. From the record of the stages of water kept at the Chi- cago & Rock Island railroad bridge, it is found that the greatest range between high and low water during the last 5554 7 years is 15 feet 9-1/2 inches, being the high water of 1862 and the low water of 1864, the mean range during the same period being less than 12 feet. The range between the highest floods and the lowest water 1708 Rock Isl. Rapids, Warren Rep. — Eng. Rep. 1886. — Con. at other points along the rapids, from the best authority that could he obtained, are at Valley City, opposite Hampton, 13 feet 8 inches, and at LeClaire 12 feet, which, if correct, shows a diminution of only 3 feet, 9 inches, in the fall at high water as compared with that at low. The average width of the river on the rapids is about 1/2 mile. At LeClaire it is only 1,500 feet in one place, but widens out above and below. Below the rapids the river is wider than on them, as may be seen from the map. A line of levels, from the head to the foot of the rapids, shows a fall of 21.46 feet in a distance of about 14 miles, or an aver- age fall of 1.53 feet per mile in low water. The greatest fall is on Moline and Sycamore chains. The area of a cross-section at the head of the rapids, where the river is only 1,650 feet wide, is 30,220 square feet; at a point near Sycamore chain, 12,408 square feet; at Mo- line Chain, 6,829 square feet. Careful experiments were made on the velocity of the cur- rent in order to determine the amount of discharge over the rapids in ordinary low water. For this purpose the stations 5555 were taken and a number of velocities between them at dif- ferent distances from the shore determined by floats ; a mean of these was taken as the surface velocity. The mean area of the two cross-sections at the stations was taken as the area of the cross-section, and by applying this to D’Aubisson’s formula for the approximate discharge of a river, it was found to be 36,456 cubic feet per second. The approximate discharge behind CampbelFs Island was also determined in the same manner, and was found to be 10,726 cubic feet per second. ^Vith the exception of the places where the bluffs approach close to the river the banks are usuafly steep and rocky. * * * 5556 The question is often asked by men who have navigated this river during many years, and was once asked me by a very distinguished engineer, why I should be in such a haste to get 6 feet of water in this canal at low stage, when the radical improvement of the river is so far from being com- plete. There are two reasons for this : The first is that tlie falls of the Ohio are the worst obstructions on the whole river. The works, to give the navigation the relief which it deserves here, should be of a permanent character, and will cost a great deal of money. The normal depth fixed for the improved Ohio Biver near this obstruction is 6 feet at low-water. The works here should therefore be arranged for such a depth on general principles. The second reason is of more present importance than the first. Everyone who has any knowledge of this river knows that if there were no more water in the canal at the lowest stage than on the bars above and below it, it would fail just when every inch of 1709 water is needed in it, that is, when the river has risen, 4, 5, or 6 feet above the lowest stage. As the river rises the surface of water in the canal rises equally with the surface of the river at the head of the falls. Now, when the river rises above the lowest-water stage and begins to be used by navigation, there is a rise of more than 1-1/2 feet on all the 5557 bars above and below for every single foot rise at the crest of the falls and in the water surface of the canal. If the depth of water in the canal at the lowest stage were therefore left at 3 feet, when there would be 7, 8 or 9 feet in it due to a rise, there would be 9, 10-1/2 and i2 feet, re- spectively, over the bad bars above and below. There would then be a deficiency in the depth of the canal of 2, 2-1/2 and 3 feet, respectively. But in determining the available depth of water through the canal, we should always allow at least 1 foot for mud to prevent delay. So that the real deficiency in the depth of the canal at these stages in comparison with what it should be would be 3, 3-1/2 and 4 feet, respectively, at such times. Now, the deeper boats can load at these stages the better it pays them. To keep them a less de]Ah than 6 feet in the canal at the extreme low stage of the river would be a great injury to commerce, and ])articularly from now until the whole river is improved. 5558 The Ohio River Basin, according to some bulletins relat- ing to the census of 1880, which I have been able to see, still maintains its supremacy over any other of the portions of the great Mississippi Basin. It still yields enormous quan- tities of iron, steel, coal, petroleum, wheat, corn, oats, salt and tobacco, and its numerous manufacturing interests are on a steady and healthy increase. The total internal-revenue collections for the fiscal year which ended June 30, 1881, were over $135,000,000. Of this amount over $87,500,000 were collected in the eight states which, wholly or in part, lie in this basin. No toll has ever jbeen paid on the Des Moines and Rock Island Rapids in the Upper Mississippi, and Congress has appropriated $5,955,350 to improve them, against $2,600,000 expended here. In order to improve the navigation to Lake Superior, the Government in 1852 gave the State of Michigan 750,000 acres of land and the right of wav to build a canal around the falls of Saint Mary’s River, and has appropriated $2,616,000 since for its enlargement and the improvement of the river. As the work now stands, it is inadequate to serve the inter- ests of the commerce of the Ohio River, and it will become more and more so each year until the additional works sug- gested by me are completed.” 1710 Rock Isl. Rapids, McKenzie Rep. — Eng. Rep. 1880. — Con. 5559 ‘ ‘ Special. Report. United States Engineer Office, Rock Island^ Ile., March 15, 1880. General : I have the honor to acknowledge the receipt of a letter ^ from your office, dated March 9, 1880, containing a resolu- tion of the House of Representatives calling for certain maps and reports in reference to a proposed widening of the Rock Island Rapids. The accompanying map (Atlas, p. 3923; Trans., p. 6723, a copy of which map is shown in abstract, p. 1939), which shows the present 200-foot channel and the work required for in- creasing this width to 100 feet, was prepared last winter, but as yet no reports on the subject have been made. I would therefore submit the following: The Rock Island or Upper Rapids of the Mississippi River extend from Le Claire, Iowa, to Rock Island, 111., a distance of 11 miles. The river over this reach consists of a succes- sion of deep pools separated by chains of rocks, through which the water, in the course of centuries, has cut irregu- lar channels. The fall from the head to the foot of the rapids is about 20 feet, giving a velocity of current of from 2 to 10 feet per second at the shoal places. Previous to improvement the rapids could not be passed 5560 by the larger class of steamboats at a 2-foot stage, and at medium stages boats drawing from 3 to 1 feet could only pass on calm days and by using extreme caution. Congress caused a survey and report on the improvement of the rapids to be made in 1866. In 1867 the work of excavation was commenced, in ac- cordance with the approved plan, which was to give a chan- nel over the chains 200 feet in width, with a depth of 1 feet below low- water of 1861. From 1867 to 1879, inclusive, $1,- 150,650 were appropriated, for which sum about 90,000 cubic yards have been removed, virtually completing the above mentioned plan. The work already accomplished has greatly benefited navi- gation, but still certain difficulties are met with. 1. The channel is so crooked that it is not practicable in its present condition to provide a system of lights, and the navigation of the rapids is suspended during the night. 2. The width of 200 feet is not sufficient to admit of 2 boats with barges passing each other, so that either the as- cending or descending boat must wait in one of the deep pools until the other has passed through a cut. 3. A fresh breeze, acting against the very long and high Mississippi steamers, endangers, and a strong wind pro- hibits, navigation through the narrow channels. 1711 5561 4. A large steamer ascending tlie rapids through the com- paratively narrow 200-foot channels draws down the water to such an extent as to materially reduce the depth in the cuts, so that a 4-foot channel is not really available at all parts of the rapids during a low-water stage of the river. The most available plan that can be suggested for over- coming these difficulties is, as shown on the accompanying map, to widen the present cuts, giving a new channel 400 feet in width. By this widening, the second and third diffi- culties would be done away with, the fourth would be greatly reduced, and by so straightening the channel as to obtain long reaches, lights could be established which would over- come the first difficulty. To increase the width of the channel to 400 feet, giving a depth of 4 1/2 feet below low-water, which will insure a grade as low as that of the present cut, will require the re- moval of 299,811 cubic yards of rock, and will cost approxi- mately $1,258,866. Boats drawing five feet can pass through the lies Moines Rapids Canal during extreme low-water. If it is deemed advisable to give the same available depth and a perfectly safe channel over the Rock Island Rapids, the cuts should be made 400 feet wide, and excavated to a depth of at least 6 feet below low-water of 1864. This would require the removal of 581,835 cubic yards of rock, which would cost approximately $3,491,010. 5562 I have estimated the cost of removing rock at $6 per cubic yard, which would be sufficient, provided an appropriation was large enough to justify the building of coffer-dams and a systematic method of working. The plans present could undoubtedly be so modified dur- ing the progress of the work as to require cutting on but one side of the channel, where it is now supposed to require cutting on both sides ; such changes, when practicable, will reduce the estimated cost. The interests of navigation of course require that in time all the proposed work shall be done, but as the obstructions at the Rock Island Rapids are made up of a succession of shoals, the improvement of each may be considered as sep- arate, complete within itself, and benefiting navigation just so much. The only point in connection with the proposed widening of the channel which has not yet been considered is the effect which the straightening and improving of present channel would have on the depth of the water and the rapidity of the current. 5563 Whereupon counsel for the defendant produced a copy of the original deed of trust, and asked that the same might 1712 be substituted in the record in place of the original, which was previously admitted in evidence. Said document was marked Defendant’s Exhibit 1, June 20, 1908, and received^in evidence. (App. II, p. 3906; Trans., p. 6301; Abst., p. 1854.) J. A. Lindex, a witness for defendant, being recalled, testified as follows: Direct Examination. I stated that the Fullerton’s Third Addition to Chicago was located chiefly in the northeast quarter of the northeast quar- ter of Section 31, Township 40, Eange 14. It also extends into the northwest quarter of the northeast quarter of the section, so as to reach the river. It does not extend into any other por- tions of Section 31 than the northeast and northwest quarters of the northeast quarter. 5564 Q. Then it lies entirely in the north half of the north- east quarter of Section 31, does it? A. Yes, sir; situated within the boundaries of the northeast quarter of the section. Counsel for defendant then substituted for the three plats introduced here the other day, certified copies. Said plats were thereupon admitted in evidence, objection of complainant to same being overruled, and marked ^^Defendant’s Canal Trustees’ Sub-Plats 1, 2 and 3,” respectively (Atlas pp. 3990, 3991 and 3992; Trans., pp. 6707-12-18; Abst., p. 1937.) 5565 Thereupon counsel for defendant read in evidence the fol- lowing stipulations : 1713 State of Illinois, County of Grundy. I ss. In the Circuit Court of Grundy County. The People, ex rel. Charles S. De- neen, Governor, and William H. Stead, Attorney General, Complainants, vs. Economy Light and Power Company, a corporation. Defendant. In Chancery. fNo. 1526. ✓ STIPULATION. Whereas, Judge Stough, who heard the motion for pre- liminary injunction in the above entitled cause, has by con- sent of the parties thereto invited Julian W. Mack, Judge of the Circuit Court of Cook County, Illinois, to act as judge of the Circuit Court of Grundy County, for the purpose of presiding as judge at the final hearing of this cause, and Judge Mack has accepted such invitation; 5566 Now, therefore, it is stipulated that the defendant shall have until Monday, the 30th day of March, 1908, to file its answer in the said cause, and that the complainant shall have fifteen days thereafter within wdiich to file its replica- tion to such answer, or otherwise plead or proceed in respect to the pleadings herein. Executed in duplicate, this 23rd day of March, 1908. Wm. H. Stead, Walter Peeves, Merritt Starr. Solicitors for Complainants. IsHAM, Lincoln & Beu^le Frank H. Scott, Per G. E. P. Solicitors for Defendant. 1714 State of Illinois^ Geundy County. i ss. In the Ciecuit Couet of Geundy^ County. In Chancery. The People of the State of Illinois, etc., vs. The Economy Light and Power Com- pany. Bill for Injunction. No. 1526. 5567 STIPULATION. It is stipulated by and between the parties to the above entitled cause, by their counsel respectively, that in the no- tices for the taking of depositions on behalf of the complain- ant or defendant, it shall not be necessary to insert the names of witnesses, and that depositions may be taken of witnesses not named in such notices with the same force and effect as if the names had been therein inserted. And it As further stipulated that, where depositions are taken before a notary public, they may be taken in short- hand and afterwards typewritten under the direction of the notary public and presented without the signature of wit- nesses, the signatures and final or subscribing oaths thereto being waived. Dated this third day of Februarv, A. D. 1908. W. H. Stead Waltee Beeves Meeeitt Staee Solicitors for Complainant. IsHAM, Lincoln & Beale Solicitors for Defendant. 1715 State of Illinois, [ Grundy County. \ ^ In the Circuit Court Thereof. March Term A. I). 1908. 5568 The People of the State of Illinois, ex rel. Charles S. Deneen, Gover- nor, and W. H. Stead, Attorney General, vs. . Economy Light & Power Company, >In Chancery. It is especially stipulated and agreed by and between the parties to the above entitled cause that in case either party to this cause shall desire to offer in evidence, upon any hearing ing in this cause, either upon the merits of the cause or on any motion made therein, all or any part or ]>arts of any printed document, or report purporting to he a public document, and to have been pubiished under the authority of the United States Government or of any of its departments or officials, proof of the authenticity of said document or documents need not be made, such proof being hereby waived, but the parts thereof offered shall be subject to all other objections. February 25, 1908. Walter Peeves, Solicitor for the Complainant. IsHAM, Lincoln & Beale Solicitor for the Defendant. State of Illinois, } f V Ss Grundy County. i In the Circuit Court of Grundy County. 5569 The People ex rel, Charles S. De- ^ neen. Governor, and W. H. Stead, 1 Attorney General, j Complainants, I vs. Economy Light and Power Com- pany, a corporation. Defendant. J In Chancerv. No. 1526. STIPULATION. It is stipulated and agreed by and between the solicitors for the parties to the above entitled cause, that in case either 1716 S tipulation. — Con tin ned. party to said cause shall desire to offer in evidence, upon any hearing thereof, all or any part, or parts, of any printed document purporting to he a public document, or purport- ing to have been published by or under authority of the State of Illinois, or any of its departments or officials, or by or under authority of commissioners or trustees of the Illinois and Michigan Canal, or Sanitary District of Chi- cago or purporting to contain reports or other communica- tions by legislative committees, or by any of the officials of said State, or by engineers or surveyors to any such officials, proof of the authenticity of such document, or of any re- ports, proceedings or communications therein set forth, need not be made, such proof being hereby waived, but the parts offered shall be subject to all objections other than objec- tions based upon the absence of such proof. It is further stipulated that in case either of the parties to said cause shall desire to offer in evidence, upon any hear- ing thereof, all or any part, or parts, of any printed book or volume purporting to contain narratives of explorations or travels prior to 1848, or any printed book or document purporting to contain historical, scientific or geographical facts or matter relating to the territory northwest of the Ohio, Indiana Territory, Illinois Territory or State, the Illi- nois Eiver, the Desplaines Eiver and its use or non-use, its character, condition and physical attributes in the early days 5570 prior to 1848, or to the history or development of the sci- ence or business of navigation, or engineering questions re- lated thereto, proof that such book or volume was in fact written by its purported author, and in fact printed and pub- lished at the time it purports to have been printed and pub- lished, need not be made, such proof being hereby waived, but the part, or parts, of such volume offered in evidence shall be subject to all objections other than objections based upon the absence of s;qch proof. Dated March 28, 1908. Wm. H. Stead Walter Eeeves Merritt Starr Solicitors for Complainant. IsHAM, Lincoln & Beale, Solicitors for Defendant. Whereupon the argument of counsel was begun. During the said argument counsel for complainant called attention to the testimony in said cause at page 2473 of record (Trans., p. 3772), at which point the following occurs : 5571 ‘^Counsel for Complainant. I suppose it is understood with regard to each and all of these documents that what is 1717 put in are short extracts, and upon examination if we desire to supplement what is offered by other passages— The Court. Yes. Counsel, for Complainant. And that they are made part of the defendant’s offer. Counsel for Defendant. Certainly wherever they are germane to the offer, that has been ruled. The Court. That has been understood, Mr. Starr.” (See supra, Trans., p. 5525; Abst., p. 1699.) And offered in evidence from the Benyaurd report of 1884, Part 3, which had been offered just before the close of the testi- mony by counsel for com]ilainant, which was then admitted in evi- dence. Whereupon the argument in said cause was continued, during which argument the following occurred: 5572 Counsel for Complainant. I am compelled to leave a great portion of what I wanted to say unsaid. I do not see how, your Honor, I can take and rehearse the testimony of navigators on the two sides of this case, your Honor. The testi- mony of Mr. Tibbals, who for many years was the Government inspector of steamboats on the upper Mississippi, and the pilot on these upper rapids for more than fifty years. I venture to say that, in the purely professional occupation of a pilot, he stands absolutely at the head. The Court. Is he the man that conceded that himself? Counsel for Complainant. Xo; I will tell you who that w^as. That was the man from St. Louis, President of the Benevolent Association, and as a pilot he had few equals and no superiors. We didn’t produce that witness. Here is Mr. Tibbals, wdio says that he navigated the Missis- sippi from 1855 to the present time, and has carried on suc- cessful navigation on the Mississippi on 14 inches of water; that the current on the Bock Island Eapids on the Mississippi is from six to nine miles an hour; he described a number of boats running up the Chippewa and Minnesota, and other branches of the Mississippi Eiver. * * * Here is Captain Bing. He came here from Cincinnati. Asked to state the relative high and low water marks of the Ohio, he had seen high floods there when it was 71 feet at Cincinnati, and on the other hand he said have seen the river as low as 12 to 14 inches between Pomeroy and Iron, ton. There are several shoal places there that go down to about 12 inches.” (Heading from the record.) I remember perfectly well the little smile that came to your Honor’s face — 1718 Rilling of Court.— Continued. The CouET. Yes, when he got down to small Tjoats I sup- posed row boats or something of that kind. 5573 Counsel foe Complainant. No, the river gets down to the point where the deepest water yon can get in these stretches is only 12 inches, and then the little boats come down out of the tributaries and do such navigation as is done until the fall rise comes on again. The CouET. Small steamboats! Counsel foe Complainant. Yes. The CouET. On 12 inches! Counsel foe Complainant. That is what he said, and that is just what the fact is. The CouET. surprise then w^as, just as it is now. I thought he had reference to row boats. Counsel for Complainant. That comes out all clear. Whereupon during the further argument of said cause, counsel for complainant pointed out the fact that the court ought to com- pare the testimony of the witnesses both for the complainant and the defendant, with the Government reports. Whereupon the court ruled as follows: 5575 The Couet. It never occurred to me until today, for my own enlightenment — you have got your bill filed to enjoin them from doing certain things; if they do these things, with your bill pending, and you ultimately succeed and there were no injunction, they would have to undo them, and any court would compel them at once to undo them. The point I had in mind wms this: If they win ultimately there, there is seri- ous damage, without any possibility of recompen.se from any- body. If the State wins ultimately, — I am not talking about the decision of this court, I mean ultimately, is there any possibility of harm to the State, and what is that harm! I have not been able to figure it out myself. In permitting them to do what they want to do, of course there is a power in a court of equity to cause it all to be undone if they lose. Whereupon counsel for complainant insisted that such a de- cision wmuld prejudice the rights of the State. During the further argument the following also occurred: 5577 The Couet. You may perhaps shorten your argument, Mr. Eeeves. You may assume that if the flowage contract is to be dealt with separately from the twenty-year lease, and that if the true interpretation of it is that it grants right in perpetuity, it is void. You need not argue that. After the close of the argument of counsel, »Tudge Mack en- tered the decree which elsewhere a])pears of record. 1719 Appendix I. 5578 (Said appendix contains the text of the deed of cession of the Northwest Territory by Virginia to the general Gov- ernment and of all acts of Congress of the United States and statutes and joint resolutions of the General Assembly of the State of Illinois which were introduced in evidence and not copied into the record at the point of their introduction.) Note : The said several items of evidence comprising the said Appendix I are here abstracted by giving a statement of what each thereof is, its date and title and by referring to the texts thereof as they appear in the official publications of said acts and statutes, and incorporating herein by such reference such parts thereof as may be used in argument of this case. This method is adopted for the sake of brevity with the desire that in the event that the same should at any time be deemed inadequate by the court, leave will be granted to the complainants to furnish a printed pamphlet containing the full text of such legislative acts, etc., in compact form. 5579-83 The deed of cession of the Northwest Territory from Vir- ginia to the General Government dated March 1, 1774. 5584 The ordinance adopted by the Congress of the United States under the Confederation on the 13th day of July, 1787, commonly called the Ordinance of 1787. 5595 The Act of Congress of the United States entitled ‘U\n Act providing for the sale of the land of the United States in the territory northwest of the Kiver Ohio and above the mouth of the Kentucky Eiver,” approved May 18, 1796. 5603 The Act of the Congress of the United States entitled, ‘CVn Act to divide the territory of the United States north- west of the Ohio Eiver into two separate governments”; approved May 7, 1800. 5606 The Act of the Congress of the United States entitled, ^C\n Act making provision for the disposal of the public land in Indiana Territory, and for other purposes,” approved March 26, 3804. 5621 The Act of the Congress of the United States entitled, ^U\n 1720 Statutes Introduced in Evidence. — Continued. Act dividing the Indiana Territory into two separate gov- ernments’'; approved February 3, 1809, to U. S. Stats: at Large, 514. 5624 The Act of the Congress of the United States entitled, ‘‘An Act to enable the People of Illinois to form a Consti- tution and State government and for the admission of such State into the Union on an equal footing with the original States”; approved April 18, 1818, 3 U. S. Stats, at Large, 428. 5630 Preamble of the Constitution of the State of Illinois adopted at Kaskaskia in Convention August 26, 1818, Laws of Illinois 1819, App., p. 1. 5631 Joint resolution of the Senate and House of Eepresenta- tatives of the United States declaring the admission of the State of Illinois into the Union, adopted December 3, 1818. 5632 Act of the General Assembly of the State of Illinois en- titled, “An Act to authorize the building of a bridge across the Desplaines Eiver”; approved February 19, 1839. 5634 Act of the General Assembly of the State of Illinois en- titled, “An Act to amend the several laws in relation to the Illinois and Michigan Canal”; approved February 26, 1839. Act of the General Assembly of the State of Illinois entitled, “An Act declaring the Desplaines Eiver a navigable stream”; approved February 28, 1839. 5646 Act of the General Assembly of the State of Illinois en- titled, “An Act to authorize Stephen Forbes to construct a dam across the Desplaines Eiver in Cook County”; approved March 3, 1845. 5647 Act of the General Assembly of the State of Illinois en- titled “An Act authorizing the building of a bridge in Town- ship 36 north, Eange 10 east, in Will County”; approved Feb- ruary 12, 1849. 5649 Act of the General Assembly of the State of Illinois en- titled, “An Act to provide for the completion of the Illinois and Michigan Canal upon the plan adopted by the State in 1836”; approved February 16, 1865. 5654 Act of the General Assembly of the State of Illinois en- 1721 titled, Act to incorporate the Marseilles Land and Water Power Company”; approved March 9, 1867. Act of the General Assembly of the State of Illinois entitled, ‘L^Vn Act to amend the charter of the Marseilles Land and Mmter Power Company in the County of LaSalle”; approved March 27, 1869. Act of the General Assembly of the State of Illinois en- 5655 titled, ‘^An Act to relieve the loan of the City of Chicago upon the Illinois and Michigan Canal and revenues by re- funding to said cit}^ the amount expended by it in making the im- provements contemplated by ‘An Act to provide for the comple- tion of the Illinois and Michigan Canal upon the plan adopted by the State in 1836,’ approved February 16, 1865, together with the interest thereon as provided by Section 5 of said Act and to provide for Issuing bonds therefor”; approved October 20, 1871. 5658 Joint resolution of the House and Senate of the General Assembly of the State of Illinois of 1871 declaring the lease by the Board of Trustees of the Illinois and Michigan Canal to one Adam Smith to use and occupy a part of the 90 foot strip of the canal to be “not valid.” 5660 Joint resolution of the Senate and House of Eepresenta- tives of the General Assembly of the State of Illinois of 1881 instructing the Attorney General to institute legal proceedings against the Kankakee Piver Improvement Company. 5661 Act of the General Assembly of the State of Illinois en- titled, “An Act to cede certain lots and dams in the Illinois Piver to the United States”; approved May 31, 1887. 5662 Joint resolution of the Senate and House of Pepresenta- tives of the General Assembly of the State of Illinois in reference to improvements of the Desplaines and Illinois Pivers;” adopted by the House May 27, 1889; concurred in by the Senate May 28, 1889. 5665 Act of the General Assembly of the State of Illiliois en- titled, “An Act to create sanitary districts and to remove obstructions in the Desplaines and Illinois Pivers;” approved May 29, 1889. 1722 Statutes Introduced in Evidence. — Continued. 5686 Act of the General Assembl}- of the State of Illinois en- titled, ‘A\n Act conferring police power upon the sanitary district of Chicago;’’ approved June 16, 1893. 5687 Act of the General Assembly of the State of Illinois en- titled, ‘‘An Act to amend Sections 12 and 20 of ‘An Act to create sanitary districts and to remove obstructions in the Des- plaines and Illinois Eivers’; approved May 29, 1889; in force July 1, 1889”; approved June 10, 1895. 5689 Act of the General Assembly of the State of Illinois en- titled, “An Act to amend Sections 12 and 21 of ‘An Act to create sanitary districts and to remove obstructions in the Des- plaines and Illinois Eivers,’ approved May 29, 1889, in force July 1, 1889, and amended by an Act in force July 1, 1895;” approved May 13, 1897. 5692 Act of the General Assembly of the State of Illinois en- titled, “An Act to amend ‘x\n Act to create sanitary districts and to remove obstructions in the Desplaines and Illinois Eivers’; approved May 29, 1889 in force July 1, 1889;” approved May 10, 1901. 5693 Act of the General Assembly of the State of Illinois en- titled, “An Act extending the powers of the sanitary district organized under an Act entitled, ‘An Act to create sanitary dis- tricts and to remove obstructions in the Desplaines and Illinois Eivers,’ approved May 29, 1889, and in force July 1, 1889, to enable such districts to improve certain navigable streams within or auxil- iary to such districts and to build bridges across such streams;” approved May 13, 1901. 5695 Act of the General Assembly of the State of Illinois en- titled, “An Act in relation to the Sanitary District of Chi- cago to enlarge the corporate limits of said district and to pro- vide for the navigation of the channels created by such district and to construct dams, water wheels and other works necessary to develop and render available the power arising from the water passing -through its channels, and to levy taxes therefore;” ap- proved May 11, 1903. 5703 Act of the General Assembly of the State of Illinois en- titled, “An Act recognizing the Desplaines and Illinois 1723 Rivers as navigable streams, and to prevent obstructions placed tlierein, and to remove obstructions therein now existing;” ap- ])roved Deceml^er 6, 1907. Appendix II of the Certificate of Evidence. Appendix II contains all of the documents and documentary evi- dence offered or introduced in evidence, wliicli are not set forth in connection with the statement of their offer, except those whicli are put in the Atlas. The Appendix presents the documents in the order of their men- tion, together with references accompanying each to the page of the Certificate of Evidence, where it was offered or received in evi- dence. Cross-references vice versa appear in the Certificate of Evidence to the places where the documents are to be found in the appendix. Note: In the Certificate of Evidence as incorporated in the Transcript of Record cross-references from the body of the testi- mony to Appendix II and to the Atlas, were made by the page number of the Certificate of Evidence, and from AjDpendix II and the Atlas, to the body of the testimony in the same way. The said page numbers of the Certificate of Evidence may be found and identified in the Transcript of Record thus : In each instance the Certificate of Evidence page number in the transcript is the lowest number upon the page, and is stricken through with a red mark. 5706 Report of Boundary Commission. (App. II, p. 3884, referred to C. E., p. 1098; Trans., p. 2887; Abst., p. 929.) Date January 26, 1833. Locates the boundary line between Illinois and Wisconsin, as reaching the west bank of River Desplaines at a point 138 miles, 8 chains and 99 links east of the Mississippi River, ‘Do west bank of River Desplaines, which is about 80 links wide and runs south.” 1724 5717 Field Notes Exhibit 1. (App. II, p. 3885, referred to C. E., pp. 416-426; Trans., pp. 2194-2204; Abst., pp. 765-6.) This is a certified copy of the field notes of the meanders of the Desplaines Eiver. 5720 On page 1 of the exhibit Field Notes, Volume 250, page 259, the surveyor records as follows : ^‘Meandered up the end bank of the Illinois Eiver in Sect. N. 0. 24 T. N. 0. 34 N. E. No. 8 E. Then follow the direc- tions of the courses and distances thus: S 76 E 13 00.” There are in all 9 of these specifications of courses and dis- tances with marginal notes. In the middle of the list of courses and distances, the surveyor notes ^‘blutf leaves the river.” Meandered up the end bank of the Illinois Eiver in Sect. No. 36 T. No. 34 E. No. 8 E. 5763 On page 44 of the exhibit of field notes, appears the follow- ing: (Vol. 247, page 158.) ‘^Meanders down the N Side of Laplain through Sect No. 1 T 38 N E 12 E from the head of navigation s 34 E 4.06 s 48 E 6.00 s 24 E 2.65 s 43 E 6.93 s 15 1/2 V' 5.00 s 30 1/2 W 7.50 s 3 1/2 W 13.00 s 13 E 3.50 s 5 1/2 W 13.00 s 7 W 7.00 s 16 AV 8.76 Oct 17th 1821 s 41 1/2 W 4.21 Jno. Walls s 6 E . 7.23 to the cor of F Sects 1 & 12 207) Commenced meander ing on the west bank of an island in Illinois Eiver at the corner of fractl sect 11 & 14 T 34 N of E 9 E thence down the river with the meanders thereof. The term ‘‘Illinois Eiver” appears seventeen times in these field notes, and the term “La Plain” three times. 5762 In Volume 247, page 156 (Field note, pages 42-3), the sur- veyor says “continued through Sect. 12 * * * carried up across the Portage Creek or swamp Oct. 16, 1821, John Walls.” 5771 Field Notes Exhibit 2. (App. II, p. 3886 — Introduced C. E., pp. 426-7; Trans., p. 2205; Abst., p. 766.) These are duplicates of certain of the last field notes, which relate more specifically to the site of the proposed dam. 1725 5982 Field Notes Exhibit 3. (App. II, p. 3887 — Introduced C. E., p. 427; Trans., p. 2205; Abst., p. 766.) These are further duplicates of some of the field notes con- tained in Field Note Exhibit 1. 5791 Survey Exhibit 4. (App. II, p. 3888, referred to C. E., p. 428; Trans., p. 2206; Abst., p. 766.) A delineation of the township line called for by foregoing field notes on the range line at the west side of Township 34 N. E. 9 East of 3d P. M. And the similar township line on the east side of the range line of Township 34, etc. 5795 Cooley Exhibit 1. (App. II, p. 3889, referred to C. E., p. 578; Trans., p. 2367; Abst., p. 804.) This is the report of the Internal Improvement Commis- sion of Illinois, a pamphlet of 62 pages, covering the history, the physical relations, the divisions of the deep water-way route, and discussion of the official project for deep waterway, connecting the lakes and gulf, with full data concerning the Desplaines Eiver. 5836 Cooley Exhibit 12. (App. II, p. 3890, referred to C. E., p. 597, 853 and 2264; Trans., pp. 2386, 2642, 4100; Abst., pp. 809, 876, 1183.) This is an extract from the Eeport of the Board of En- gineers on a deep waterway, made December 19, 1905, to the 59th Congress, First Session, and usually referred to as Docu- ment #263. This extract contains a list of the gauge read- ings of the gauges on the Illinois and Desplaines Eivers. 5860 Patent Tunnel Boat Exhibit. (App. II, p. 3891, referred to C. E., p. 810; Trans., p. 2599; Abst., p. 870.) ’ This is a copy from the U. S. Patent Office of U. S. Patent #733010. This is known as the ‘^Coen Patent.’’ ‘‘The object of this invention is to provide for the abso- 1726 lute immersion of a propellor wheel of abnormal proportions as compared with the depth of water wherein the said wheel is to work, so as to secure the propulsive effects or relative benefits of a comparatively large propeller wheel in places where only light-draft vessels can be used. The end to which I aim is attained by first inclosing the wheel within the body of the vessel, as hereinafter shown, so that the water can reach the said chamber from forward and discharge from the after portion of the chamber from the ac- tion of the wheel. •* * * My final object is to produce here a complete propelling apparatus which can be easily adjusted to light-draft vessels wherein the screw-propellor could not be used, as ordinarily employed in vessels, and thereby make serviceable as inde- pendent carriers many boats which have to be towed by other vessels at the present time. * * * In this connection it should here be stated that the appar- atus herein described is to be of such an adjustable nature as to admit of being placed in various forms of vessels with no more change than may be found necessary in the making of the bottom walls of the main chamber to fit and fasten to the floor of the vessel by means of flanges herein provided. In the drawings, A represents an oblong bottomless cham- ber with arched top, in which is an opening leading to vertical chamber B, which is in turn supplied with a valve C at its top, as shown. This latter chamber I have designated as the ‘vacuum-chamber’,' because when in operation a vacuum or partial vacuum is maintained at the upper portion thereof in order to raise the water therein to a sufficient height to insure perfect immersion of the propeller-wheel D, which operates in Chamber A from rotary motion imparted to it by shaft E and connections, as hereinafter described.” (Copy of said drawing appears on opposite page.) Ko. 733,010. PATENTED JULY 7, 1903. C. M. COEN. APPARATUS FOR THE PROPULSION OF VESSELS. APPLIOATIOS PILED OOT. 9, 1902. HO KODEL. THE KORSli PETERS CO . PMOTO-EITmO . WAiMRtCTON O C 1729 5863 Cooley Exhibit 4. (App. II, p. 3892, referred to C. E., pp. 598-852; Trans., py). 2387, 2641; Abst., pp. 810, 876.) This is a tabulation of the average weekly rate of flow in . cubic feet for the year 1900, by the Sanitary District of Chi- cago, of 5 different measurements of streams, viz. : #1. The Illinois & Michigan Canal, #2. The Main Drainage Channel, #3. The Chicago River, #4. The Desplaines at Riverside, #5. The Desplaines at Joliet. The quantities will be found divided into 52 weekly sum- maries. The average for the 49 weeks of the Desplaines River at Riverside above any artificial contribution is given at 19,- 072 cubic feet per minute. And at Joliet with the drainage water added, at 233,976 cu. ft. per minute. 5881 Cooley Exhibit 5. (App. II, p. 3893, referred to C. E., pp. 598-852; Trans., p}>. 2387, 2641; Abst., pp. 810, 876.) This is a similar exhibit for the year 1901. It shows the average of the Desplaines at Riverside for the year to have been 20,974 cu. ft. per minute without any added water, and 277,153 cu. ft. at Joliet with the drainage water added. 5899 Cooley Exhibit 6. (App. II, p. 3894, referred to C. E., pp. 598-853; Trans., pp. 2387, 2641; Abst., pp. 810, 876.) This is a similar table for 1902. It shows the average of the Desplaines at Riverside for the whole year, to have been 30,235 cu. ft. per minute, and at Joliet with the drainage water added, 294,132 cu. ft. per minute. 5918 Cooley Exhibit 7. (App. II, p. 3895, referred to C. E., pp. 598-853: Trans., pp. 2387, 2641; Abst., pp. 810, 876.) A similar table for 1903, showing an average at River- side for the whole year, of 35,763 cu. ft. per minute, and at Joliet of 353,959 cu. ft. .5937 Cooley Exhibit 8. (App. II, p. 3896 referred to C. E., pp. 598-853; Trans., pp. 2387, 2641; Abst., pp. 810, 876.) A similar exhibit for 1904, showing an average at River- side for the whole year, of 22,372 cu. ft. per minute, and at Joliet of about 295,000 cu. ft. per minute. 5954 Cooley Exhibit 9. (App. II, p. 3897, referred to C. E., pp. 598-853; Trans., pp. 2387, 2641; Abst., pp. 810, 876.) A similar table for 1905, showing an average at Riverside, of 22,265 cu. ft. per minute, and at Joliet of about 295,000 cu. ft. per minute. 1730 5969 Cooley Exhibit 10. ( App. II, p. 3898, referred to C. E., pp. 598-853 ; Trans., pp. 2387, 2641; Abst., pp. 810, 876.) A similar table for 1906, showing an average for the year of 24,598 cu. ft. per minute at Eiverside, and of about 295,- 000 at Joliet. 5984 Cooley Exhibit 11. (App. II, p. 3899, referred to C. E., pp. 598-853; Trans., pp. 2387^ 2641; Abst., pp. 810, 876.) A similar table for 1907, showing the average at Eiver- side for the year of 45,582, and the flow per minute at Joliet has not been averaged, but varies from 492,419 cu. ft. per minute March 29th to 228,302 cu. ft. per minute September 7th. 5999 Cooley Exhibit 13. (App. II, p. 3900, referred to C. E., p. 853; Trans., p. 2642; Abst., 876.) This is a record of the proceedings of the Board of Trus- tees of the Sanitary District for November 27, 1907, and contains a schedule of 31 gauges, maintained by the Sanitary District, of which 3 are upon the Desplaines Eiver, and gives a record of daily gauge readings at these gauges for the preceding year. 6011 House Document #263 again. (App. II, p. 3901, referred to C. E., p. 2264; Trans., p. 4100; Abst., p. 1183.) Here follow 4 pages of Government gauge readings taken from this document. 6014 Cooley Exhibit 32. Eiverside Gauge Eeadings. (A]op. II, p. 3902, referred to C. E., p. 2264; Trans., p. 4100; Abst., p. 1184.) This is a table of gauge readings at the Eiverside gauge in the Desplaines for the year 1905. 6028 Cooley Exhibit 34. (App. II, p. 3903, referred to C. E., p. 2265; Trans., p. 4100; Abst., p. 1184.) A similar table of daily readings of the Eiverside gauge for 1907. 6055 Fogarty Exhibit 1. (App. II, p. 3904, referred to C. E., p. 2809; Trans., p. 4647; Abst., p. 1352.) Defendant Exhibit. A picture from the advertisement of the stone quarry, representing a temporary piling bridge across the head of Joliet Lake, which the letter press attached states was 500 ft. long. Said picture appears ujion the opposite page. 1 i 0>J 6057 Abstract of Bound Volume of Abstracts and Briefs in Druley V. Adam. (App. II, p. 3905, referred to C. E., ]). 3001 ; Abst., p. 1420.) Trans., p. 4838; Exhibits put in by tlie defendant. 6059 ( 1 ) Supreme Court of Illinois Northern Grand Division. September Term, A. D. 1881. William M. Druley, Appellant ^ vs. William Allen Appellee Appeal from Appellate Court ^ Second District Abstract of the Record of Circuit Court. 3 Narr. Alleges possession by plaintiff of certain lots of land with mills thereon situate; the enjoyment of the use of the water in Desplaines River, and the right to use ; that defendants by means of ditches, trenches, gates, &c., diverted the water of said river so that the same did not flow to plaintiff’s mill as of right it should have done. Dam- age, $5,000. 4 Additional Count. Alleges possession and right to use water of Desplaines River; that defendants, pre- tending to have license from Canal Commissioners said Ca- nal Commissioners having the right to use the water of the river for navigation purposes only, cut certain channels so that the surplus water in said river not needed for naviga- tion purposes in said canal, which would have flowed to plaintiff’s mills, was drawn from said canal into the Des- plaines River below the mills and lots of plaintitf in such manner that the water of said stream was diverted into said 6060 canal in a much greater quantity than was needed for navi- gation purposes, and than the commissioners had any right to draw the same above the lots and mills of plaintitf, dis- charged below the same, so that the water of the river did not run as it had heretofore run, so that the plaintiff was deprived of its uses, &c. 1734 Abstract, — Druley vs. Adam. — Continued. ( 2 ) 5-15 Plea. General notice, with a notice which contains no other facts than are found in the statement of facts forming the bill of exceptions. 18 Judgment pro defendants; exception and prayer for appeal, &c. 19 Bill of Exceptions. Be it remembered, &c., that evidence was introduced which, for the purposes of this appeal, it is stipulated by and be- tween the parties established the following facts : That the plaintiff at the time of the commencement of this suit was possessed as the owner of lots 1, 2, 3 and 4 in block 45, and lots 1, 2, 3, 4, 5, 6, 7 and 8 in block 57, and lots 1, 2, 3, 4 and 6 in block 62, all in the School Section Addition to Joliet in Will County, Illinois; said addition compris- 20 ing the whole of Section 16, Town 35, Kange 10 East 3d P. M. ; and that said plaintiff and his grantors have been in possession of said premises continuously since the year 1852, and prior thereto ; and the said grantors to plaintiff were Philo A. and Orlando H. Haven; that said premises are j located on the Desplaines Eiver, a natural water course run- I ning through said Section 16; that a dam, herein called Adam’s Bam, is and has been standing across said river since prior to the year 1852, and that said iDremises have been used continuously to the date of trial by plaintiff and his grantors for mill purposes, deriving the power therefor from said Desplaines Eiver. That said plaintiff now and for many years has located on said premises mills propelled by water power derived from said river, and has and had at the date of the diversion of water complained of located on said premises six wheels, four of which are in place to be used and which are reason- ably fitted to use the water in the river, and do not require to put them in use any unreasonable detention or emplo}^- ment of the water flowing in said river. That the location of said premises with reference to the Illinois & Michigan Canal and the Desplaines Eiver in -the 6061 City of Joliet, is correctly shown by the map marked which shall be sent up with the record herein; and that the location and course of the Desplaines Eiver and the Illinois & Michigan Canal from the north line of Sections 22 and 23 in Town 35 north, Eange 10 East (being the Town of Lock- port) to the south line of Section 16, Town 35, Eange 10 East (being the Town of Joliet) with the locks, levels and dams of said canal in said distance, 1735 (3) the dam of said Adam and the structure of said defendants on said canal below Adam’s Dam are correctly shown by the map marked to be sent up with this record. That said canal was’ opened for navigation in the spring of the year 1848. 21 Tliat the summit division of said canal terminates at Lockport, 111., on Section 23, Town 36, Eange 10, and was improved by the City of Chicago so as to make a con- tinuous level of drawing water from Lake Michigan from the terminus of the south branch of the Chicago Eiver to Lock No. 1 aforesaid, under the Act of the General Assembly of date February 16, 1865; that said improvement was com- pleted about May 1, 1871; that the State of Illinois, by Act of the General Assembly, assumed charge of said improved level in the year 1871, by Act of date October 20, 1871, and has since controlled the same. That from Dam No. 2 in Joliet, south the canal level is known as the Channahon level; that all the water which is put into said level for any purposes is drawn from the pool formed by Dam No. 2 at Joliet, above plaintifl/s dam, and since the building of said canal and its opening in 1848 until the completion of the structure of defendants no water had ever been drawn from said level, or had been put into the same except as required for navigation purposes, nor had any water power been used or leased on said level. That there is more water introduced into the summit level of said canal by reason of the improvement known as the deep cut, above referred to, than is required for navigation purposes, and more than is required for the purposes of the canal between locks one and two, two and three, and three and four, on said canal between Lockport and Joliet; that the use of such surplus water is leased to Norton & Co., at Lockport, so far as they may require, and the balance is discharged by a spillway, — both the water used by Norton & Co. and that discharged by said spillway being conducted by a race, shown in map 1, from the hydraulic basin, con- nected with the canal, also shown on said map, to the Des- plaines Eiver, as shown on said map, at a point in Section 23, in said town, and from thence mingled with the other 6062 water of said river, follows the bed of said stream through Sections 22, 23, 27 and 34, in the Town of Lockport, and partially through Sec. 3, in the Town of Joliet, as shown by said map, to a point where said canal effects a junction with said river. (4) That from said point in Section 3 aforesaid where said junction is made to Dam No. 2 in Joliet said canal is con- 1736 Abstract, — Druley vs. Adam. — Continued. taiiied within artificial banks or walls of stone, but com- prises the original bed of said river, using the same, and leaving said river as shown on said map at Dam No. 2. That there is a mill site and mill on said river, Sec. .23, in Lockport, and bad been for many years ; and that from the point on Sec. 23 where said surplus water is discharged to the point on Sec. 3, in Joliet, where the canal enters into the bed of said river there is no connection between said canal and said river, and no structures, works or improve- ments of any kind were ever placed on said river, or any control exercised over the same by any canal authorities, or the state, for any purpose; that said waste-weir is never used except in case of high water and floods, or when it is necessary to draw otf the water from the level for the pur- pose of repairs, there usually being no ‘more water than is utilized at Norton’s mills. 23 That the amount of water which is discharged into the Desplaines Eiver at Lockport from the summit di- vision of said canal through said spillway and Norton & Go’s race is about 25,000 cubic feet per minute; that the amount of water required for navigation purposes on the canal from Lock No. 1 to Dam No. 1 is about 1,220 cubic feet per minute; that the amount of water required for navi- gation purposes of said canal from Dam No. 1 to the end of the Channahon level is about 3,300 feet per minute, and the amount required for navigation purposes on the Channahon level alone is about 2,800 cubic feet per minute. That since the completion of said deep cut and the turn- ing of such surplus water into said river at Lockport, the amount of water flowing over Adam’s Dam at Joliet before the diversion of the water herein complained of was greater by two-thirds, as estimated, than the amount flowing over said dam prior to said deep cut improvement, and that the amount of water passing over Adam’s Dam since the di- version complained of is double the amount which passed over said dam before the completion of the deep cut. That the season during which said canal is open for navi- gation on said Channahon level is generally from March 25th to November 25th in each year. That defendants’ premises are located on the berme or 6063 western bank of said canal, on said Channahon level, about half a mile southwest of ( 5 ) plaintitf’s dam; that defendants built a tunnel under said 24 canah put in water wheels, and at the date of commenc- ing said suit had been drawing water from said Chan- nahon level of said canal to the extent of from 6,000 to 8,000 cubic feet per minute to operate their mill, discharg- 1737 ing tlie same into the l)es[)laines Itiver below the plaintiff’s dam and at a lower level on said river than said dam, so that the use of said water was wholly lost to plaintiff; that but for the diversion of said water from the pool above Dam No. 2 of the Illinois and Michigan Canal into the Channahon level of said canal, and for such use by defendants, all of said water would have naturally flowed in the banks and bed of said river to said ])laintiff’s dam and water wheels, and could have been used by him. That such use of said water from said canal by said de- fendants is by virtue of a lease for such pur])ose executed to said defendants by the Canal Commissioners of the State of Illinois. That said mill of defendants and said structures for using said water had been in use at the date of the trial about two years, and that plaintiff could have used and had machinery wherewith to use all water so used by said defendants, and that the annual damage to plaintiff is from $800 to $1,000 per annum; that plaintiff’s damage to date of trial is from $1,600 to $2,000. That the course of said canal, as shown by said maps, is as originally laid out and completed in 1848. 25 That said Philo A. and Orlando H. Haven, the plain- tiffs’ grantors, while in possession of said premises, com- menced suit against the Trustees of the Illinois and Michi- gan Canal, about the year 1848, to recover damages for the diversion of the Desplaines River into said canal and away from said dam; and that said suit is the identical one re- ferred to and decided in the 5th Gilman Reports, page 548, and in the Ilth Illinois Reports, page 554, and is of and con- cerning the same dam that plaintiff is now in possession of. That before final judgment in said last named suit and on, to-wit: the 22nd day of August, A. D. 1853, an agreement in writing was executed between said Philo A. and Orlando H. Haven, of the one part, and said Trustees of the Illinois and Michigan Canal of the other part, in words and figures as follows, to-wit: 6064 Whereas a suit has been and is now pending at the instance Philo A. Haven and Orlando H. Haven, against the Board of Trustees of the ( 6 ) Illinois and Michigan Canal, in the Circuit Court of Will County, Illinois, in consequence of alleged damages to a cer- tain mill owned, by said Philo A. Haven and Orlando H. Haven, situated on the Desplaines River at Joliet, Will County, Illinois, occasioned by diverting the water of said river from said mill and applying it to the use of the Illinois and Michi- 1/38 Abstract, — Dndcy vs. Adam. — Continued. gc^u Canal above said mill; and whereas the said Board of Trustees and the said Philo A. Haven and Orlando H. Haven being mutually desirous of avoiding further litigation: — Therefore we, the said Philo A. Haven and Orlando H. Haven, for and in consideration of the sum of Three thousand and sixty dollars to us paid by the said Board of Trustees ot the Illinois and Michigan Canal, the receipt whereof is 26 hereby acknowledged, do hereby release and forever dis- charge the said Board of Trustees and their successors in office, from all actions, rights of action, and all claim arising out of any damages heretofore, now or hereafter, to be sus- tained by us, by reason of the use of the waters of said Des- plaines Eiver, for the purpose of supplying said canal, in the manner the same is now supplied at the feeder at Joliet. In further consideration of the said sum of Three thousand and sixty dollars, herein expressed to have been received by us, we hereby remise, release and forever quit-claim to the Board of Trustees and their successors in office, and to the State of Illinois, whenever said canal shall revert to said State, the right to use and appropriate the water of the said Hesplaines Eiver at the feeders at Joliet, below Guard Lock Xo. 1 for supplying the said canal for the purpose of navigation in the same manner the water in said river in connection with other feeders is now used for supplying said canal. AVe further agree that when, at any time, the Superin- tendent or other person having charge of said canal shall desire to reduce the quantity of water above our said mill- dam for the purpose of repairing said canal, its banks or other appurtenances at any point between our said mill and the dam across said river at said feeder, that said Super- 27 intendent, or other person having charge of said canal, may reduce the water above said mill-dam, provided the water at our said mill-dam shall not be reduced lower than the top or comb of our said mill-dam, which may be done by opening the waste-ways at the west end of said mill-dam, which shall be closed by said Superintendent as soon as said repairs can be completed, and shall not be opened except for such repairs as aforesaid, nor remain open more than for the period of one (T) week at any one time, without such compensation as may be agreed upon by any two persons to be selected by us for that purpose. 6065 We further agree to dismiss all suits now pending at our instance against said Board of Trustees in the Circuit Court of Will County, Illinois, and pay all costs of court 1739 that may remain unpaid at the time said suit or suits shall be dismissed. In witness thereof the said Philo A. Haven and Orlando H. Haven have hereunto set their hands and seal this 22nd day of August, 1833. Philo A. Haven, (Seal) by 0. Haven, His Attorney in Fact (Seal) Orlando H. Haven (Seal)” 28 And that the sum of money mentioned in said agree- ment was paid and receipted for, said receipt being in words as follows: ^‘$3,060. Eeceived, Lockport, Aug. 22d, 1853, from David Leavit Treas. for the Board of Trustees of the Illinois & Michigan Canal,, by the hands of William Gooding, Secretary, the sum of Three Thousand and Sixty Dollars, in full, on settlement of our claim for damage against the Board of Trustees of the Illinois & Michigan Canal. Philo A. Haven, by 0. H. Haven, His Attorney in Fact. 0. H. Haven.’’ It is further agreed that no evidence proving or tending to prove any other facts than as herein stated and referred, to, to wit: Said maps were offered by either party on the trial of said cause; that the evidence otfered was offered by each party hereto subject to such material objections thereto, except for matters of form as might be made; that this statement of the proofs and of the facts proved herein shall stand as and be signed by the court and filed in this cause as a proper and sufficient bill of exceptions in this case, and that no other or farther one shall be required, but that nothing herein stated shall (should a re-trial be had of this case or of any other) prejudice the rights of either party to introduce on such trial farther, other or different evi- dence proving or tending to prove any different fact or facts. 29 It is further agreed that on such evidence and proof, the said court wherein said action was pending and tried, found the issues herein for the defendants, to which finding said plaintiff excepted and moved for a new trial in the said cause, which motion was by said court over- ( 8 ) ruled, and thereupon said court rendered judgment against 1740 Abstract ,—Dniley vs. Adam. — Continued. said plaintiff and in favor of said defendant for costs. And inasmuch as the matters and things do not appear of record, he tenders this as his bill of exceptions herein, and prays that the same may be signed and sealed and made j^art of the record in this case. Garnsey & Kxox, Attorneys for Plaintiff. G. D. A. Parks, Attorney for Defendant, Certificate of trial judge. 6067 Here follows map shown on opposite page. 1 Abstract, — Drnle/ij v. Adam. — Continued. 174-1] (9) Abstract of Appellate Court Recor*3. 6068 8 Order entered in vacation April 6, A. D. 1881, finding the facts in the case from the evidence. 4 The facts as found by the Appellate Court are set forth from pages 4 to 17 inclusive, and are simply a repetition of the agreed state of facts set forth in the bill of exceptions appearing in the abstract of the transcript of record from the Circuit Court. (10) 19 Opinion of Appellate Court, filed April 6, 1881, from page 18 to page 30 inclusive, recapitulates the facts as found by the Appellate Court, being the same as those agreed upon in the Circuit Court. 32 Opinion of Appellate Court. Eeported in 8 111. App., 72. 6082 The judgment of the court below reversed and judgment entered in this court in favor of the plaintiff below and against the defendants below for $800 and costs of this court. Judgment accordingly. 47 Order granting appeal to the Supreme Court. Appeal allowed for reasons set forth in order. 53 Certificate of clerk of Appellate Court. 6085 Assignment of errors. ( 1 ) 6087 Brief for Appellees in Appellate Court. The record presents the following as the principal points for consideration: First. Viewing the State and Adam, in the relation of upper and lower riparian proprietors on the Desplaines Elver, is the State guilty of a diversion, if it takes out above Adam’s Dam no more water than it brings in from Lake Michigan through its own canal! Second. Even if the State itself be supposed guilty of a diversion by the act of passing the water from the pool above Dam No. 2 down to the Channahon level on which the oat mill of the appellees is situated, and where it can by no possibility again become available to the appellant, whatever use is made of it, can the appellees Slater & Druly be sued as the re- sponsible agents in the act of diversion, which is thus already 1744 Brief for Appdlees, App. Ct. — Druley vs. Adam. — Con. ( 2 ) irrevocab]}^ consummated by operations at the lock and dam above ? Third. Adam having purchased subject to the release exe- b088 cuted by his grantors in 1853, does that release operate to bar the action? The first, as the court at once perceives is the principal question, and to that I shall devote my chief attention, the interest of both parties being to test the absolute discretionary right claimed by the Canal Commissioners, to lease the sur- plus water at Joliet, derived from Lake Michigan, through the deep cut, in such modes as they find most profitable to the revenues of the canal. I. THE CASE SHOWS NO DIVERSION BY THE STATE. The topographical features of the case are so clearly ex- hibited by the map accompanying the record, that I shall with- out further explanation assume the court to be cognizant of the relative localities involved in the controversy. The facts also that counsel on both sides deem essential to present the main point on which the decision of the court is desired, are brought within a very narrow compass by the agreed case. Xothing is left, therefore, but a question of law: If the water, which is the subject of the alleged diversion, is con- veyed into the canal from Lake Michigan through the works and at the expense of the State, and constitutes no part of the natural and customary flow of the Desplaines Eiver, can it be rightfully withdrawn again by the State on its own premises, if in doing so that natural and customary flow of the river is 6089 not diminished? Perhaps the theory on which the appellees rely may be (3) stated in the simplest and most convenient terms by casting the prominent facts into the form of a hypothetical case. Let A. (the State) and B. (Adam) be upper and lower riparian proprietors on a given natural water course (the Desplaines Eiver), which I designate as water course No. 1. A., the upper riparian proprietor, happens to own or con- trol another and entirely independent stream which we will designate as stream No. 2 (Lake Michigan) the waters of which, for certain purposes of his own, he desires to transmit beyond the channel of No. 1, by some suitable artificial struc- tures, the particular method chosen being a question of ju- 1745 dicious and economical engineering, adapted to the local con- ditions of the case. The method'which A in fact adopts is this: instead of cross- ing directly at the point where No. 1 is introduced into No. 2, he finds it expedient to cross at a point on his premises lower down, employing the channel of No. 1, for this distance as a temporary conduit for conveying the water of No. 2, to its destined lexit, and then, by proper structures discharg'^ng this extra water into a channel of his own on the other side, prepared for it. By this process, the waters of the two streams are of course 6090 necessarily mingled together while thus flowing as an agent for the production of mechanical power and the rights of the parties in the division admit of certain adjustment on the basis of equivalent quantities. (4) Let us further suppose that B, the lower riparian owner on No. 1, not only receives a full equivalent for his dues in the original flow, but a much larger amount y incidentally sup- plied from No. 2 in the course of the operation. Question: By thus withdrawing from No. 1, the water which he has temporarily added to it is A guilty of a diver- si on f A plain statement of the questions suffices to solve it. I am certainly but expressing what seems to be a self-evident proposition of natural justice when I say that A has a per- fect right as against B to deduct from water course No. 1, by artificial channels the same amount of water which he con- ducts into it by artificial channels from No. 2 unless that right has been qualified by contract or prescription, which is not pretended in the case at bar. This proposition I do not hesitate to affirm is an inevitable inference from the elementary principles, governing the rela- tions between riparian owners. (16) 6106 The Creation of Water Power was one of the Objects Contemplated in the Original Plan of the Canal. An attempt is made by appellant’s counsel, though it must be admitted not a very serious one, to show by referring to the several acts of the Legislature, under which the Deep Cut was finally completed, that the water thus obtained is not hona fide, genuine, legal canal water below the terminus of the Summit level. Now, it is a matter of public history well known to the court, that the original plan of the canal was to supply the Summit 1746 Brief for Appellees, App. Ct. — Druley vs. Adam. — Con. level from Lake Michigan, precisely as it is now supplied. Much of the work, in fact, has been done before the suspen- sion of 1840. When the enterprise was resumed in 1845 under the trust created to secure the bondholders, the then embar- rassed financial condition of the State compelled a temporary relinquishment of the original plan, and the substitution (17) of what was termed the raised or shallow cut, to be supplied by pumps at Bridgeport and the Calumet feeder. 6107 In 1865 the City of Chicago found itself compelled to face the stupendous problem of drainage, for the public health and comfort, and deeming that its object could be effectually accomplished by completing the old deep cut already partially excavated, asked permission of the State to finish the work. Permission was given by the Act of 16th of April, 1865, en- titled: '‘An Act to provide for the completion of the I. <& M. C. upon the plan adopted hy the State in 1836.’’ Besides this significant title the preamble to the act contains a brief refer- ence to the past history of the improvement, — the original plan, — its abandonment ^Mor the time being,” — the precarious and unsatisfactory nature of the mode of supply from the Calumet feeder and hydraulic works at Bridgeport, and the great benefit to be expected by deepening the cut. See Public Laws, 1865, p. 83-4. The work accordingly was undertaken and was completed in 1871, at an expense of several million dollars, and the cost soon after refunded to the City of Chicago by the State. Is it necessary to argue the point which counsel suggest,^ based on the special circumstances that led to the improve- ment! Is it not enough that the improveemnt was in fact made! Is not the condition of the case essentially the same as if the work had been done in the first instance by the State instead of bv the City of Chicago, and done in 1848 instead of 1871! 6108 Eight of the Canal Commissioneks to Create and Lease Water Power. But again, the counsel for appellant express a gloomy ap- prehension that it is hardly according to law for the Canal Commissioners to create and lease water power to help sup- port (18) the canal. To sustain this view they have ransacked the canal laws ah initio, not forgetting the act of Congress of 1823. To this somewhat odd position I reply: 1747 1. That while navigation is the primary object of a canal, yet to create water power as an incident has been the uni- versal policy of such enterprises when undertaken at the pub- lic expense or by private corporations. The disposal of the water control of the State, and the public good dictates, both that it should be utilized in aid of manufacturing interests, and that it should be made to contribute to the expense of maintaining the wmrk. Such, at all events, has been the es- tablished policy on the Illinois and Michigan Canal, unques- tioned for more than thirty years. No express statute indeed was required to make it a duty of the Canal Commissioners, in the vigilant fulfillment of their public trust, to thus add to their limited revenues, wherever they found it practicable. The details of administration in respect to this branch of their official duties, of course, are necessarily confided to their own judgment and discretion. Special occasions have arisen and may again arise for special legislative regulation on the sub- 6109 ject, but the particular methods of creating and delivering power at any given place is a question for the Commissioners under the advice of their Chief Engineer. 2. The statute expressly gives them a general authority to lease water power. R. St. (1874), p. 189. The expression, ^^and lands and lots connected therewith,” cannot well be construed as intended to exclude cases where the State happened to own no lands or lots adjoining the locus of the waterfall. Ordinarily such a connection would exist, but it would not where the site occurs on a school section, as here, or on Government lands. But unless the two' subjects (19) enumerated in the clause water power” and ‘‘lots” are from their nature indissolubly conjoined together, they are to be taken distributively. We are to look at the main leading de- sign of the law ; and that was to utilize the surplus water for the benefit of the State wherever possible. 3. But lastly the question is none of the appellant's busi- ness. If he is legally entitled to the water, the point is need- less, — if he is not, its use by the Commissioners is no concern of his. Is THE Watek Abandoned at Lockpokt? It is contended, on the other side, that admitting the gen- 6110 eral principle under which we insist on the right of the State to draw out above the appellant’s dam the water derived from Lake Michigan, yet it has no bearing on this case, for the rea- son that it applies only where he who asserts it is riparian 1748 Brief for Appellees, App. Ct. — Druley vs. Adam. — Con. owner eontinuously for the whole distance, including both the point where the extra water is introduced and the point where it is withdrawn; that here the State appears to own no land upon either bank of the Desplaines River between Lockport and its junction with the canal above Dam No. 1, and that the water being thus allowed to run into a foreign water course at a point where the State has no status as a riparian owner, it must, therefore, be deemed to have been abandoned, and incorporated for all subsequent legal purposes with the proper water of the river. To this argument I reply that it somewhat misconceives the facts, and would be 'untenable if its facts were true. The record shows that the Desplaines River was appropri- ated to the use of the’ canal as a feeder in the very beginning of the enterprise, nearly fifty yeafls ago. The appellant’s grantors describe it as a feeder in their release. It has been ( 20 ) so constantly used for more than thirty years. By what pro- ceedings it was originally condemned or appropriated to pub- lic use and the rights of riparian owners subjected to this im- portant easement does not appear, nor is it necessary now to 6111 inquire; for it has at any rate become perfect by prescrip- tion. The State then by virtue of this easement has complete jurisdiction over the current and channel of the river, for the general purpose of a feeder ; as much so as if it were the ripar- ian owner from headspring to mouth. If it be said that this easement as a feeder is confined to the natural flow of the stream, and does not extend to its use for conveying water obtained from other sources, I reply that this mode of use has also been settled by prescription. Before the deep cut was finished, for more than twenty years before the surplus water from the Summit level, used at the mills at Lock- port, had been conveyed to the lower level through the medium of this feeder. And finally, the map before the court indicates that such a use must have been contemplated when the easement was first acquired. The juxtaposition of the Hydraulic Basin to the river, and the necessary use of its channel as a vehicle to receive and convey the water thence, demonstrate that this was a })art of its intended pur]>oses when originally ap]>ro- ])i*iated as a feeder. The Intention of the State. On the point under consideration, the first inquiry will be, I a])preliend, what was the intention of the State? For it will 1749 be hard to maintain that a thing is effectually abandoned which the owner evidently intends to resume and control for 6112 future use. To ''abandon/’ in the sense in which the term is here employed is to relinquish all future claim of property, or ( 21 ) exclusive use, and to give it finally, wholly and absolutely to the public. But that confessedly is not true, in this case, in point of fact. The whole plan of the canal is to be treated as a unit, like a vast machine, and to be viewed all together; each part in its relation to every other part, however remote. The entire chain or system of structures composing the canal, from terminus to terminus, must be surveyed, moreover, in relation to the physical peculiarities of the region through which it passes; for the engineer in planning such a work must neces- sarily conform and adapt it to the contiguous country. The relative course and comparative levels of the river and canal between Lockport and Joliet are clearly indicated on the map which the court has before it. These local conditions, it will be perceived, are such that the surplus water dis- charged at Lockport, through Norton & Co.’s tail race and through the waste wier, pursues the channel of the river for a distance of about three miles, and then empties again into the canal between Lock No. 4 and Dam No. 1. Now, how have the legal attributes of this water, with refer- ence to the rights of the appellant been essentially changed! The plan of the canal as to the disposition of the surplus 6113 water, obviously contemplated this very mode of transmis- sion from one level to another. The total fall between Lock- port and Joliet is about sixty feet; and in that part of the canal which concerns this case, it will be seen, there are seven successive levels: 1st, the summit level; 2d, that between locks 1 and 2; 3d. between locks 2 and 3; 4th, between locks 3 and 4; 5th, between lock 4 and Dam No. 1; 6th, between Dams 1 and 2; 7th, the Channahon level. ( 22 ) Into the Summit level Lake Michigan, by the recent im- provement, supplies, as was contemplated in 1836, a large quantity of surplus water, estimated at about 25,000 cubic feet per minute, not needed for navigation, but very valuable to the State of Illinois and the manufacturing interests of Lockport and Joliet, for hydraulic purposes. The plan of the canal within this distance affords four falls available to the State for water power — one at Lockport, leased to Norton & Co.; one at Dam No. 1, one at Dam No. 2, 1750 Brief for Appellees, App. Ct. — Bndey vs. Adam. — Con. and one at Cliannalion level, a portion of which is leased to the defendants. Thus the same volume of water is repeatedly used on successive levels within a space of about four miles. Recently the Canal Commissioners found that the surplus water at their disposal from the level above Dam No. 2, was such that after leasing all that could he leased to advantage at the dam, and after transmitting to the appellant more than double the amount he was accustomed to receive through his own pitiful stream before the deepening of the cut, there was still a large surplus that could be utilized most profitably, by the State, in the method exemplified in the case at bar, viz. : by drawing it directly through openings from the canal it- self, and then discharging in into the river, but necessarily and unavoidably below the plaintitf^s dam. Thus it is apparent that no intention to finally abandon the water at Lockport can be inferred from tlie original de- sign of the canal; and no such purpose, in fact is or can be imputed to the official agents of the State at any time. If an abandonment has occurred, it must be an involuntary one by the subtle operation of some mysterious technical rule of law", upon the bare fact that the surplus water instead of being transferred from one level to another between the banks of the canal itself, or through a race alongside con- structed by the (23) State, or through some ravine or natural depression in the ground owned or controlled by the State, is left to descend by the law of gravity through another kind of channel lying convenient for the purpose, to wit: the bed and banks of the Desplaines River, a water course already appropriated to the use of the canal as a feeder. Is this an abandonment in any sense whatever! 6115 Let it be remembered there is no question here between the State and the riparian owners on the river between Lock- ])ort and Joliet. To them individually this influx of water from the canal may be a benefit or an injury, according to the use they happen to make of their land. But whether a benefit or an injury, they assuredly have and claim to have no concern with the water after it again joins the canal, nor any joint interest with the riparian owmers below the point of junction. The same thing must be true of them, as to all the riparian owmers above. As to them, it cannot be affirmed, for there can be no legal occasion to affirm, that this additional water is a part of the customary flow of the river, considered as a whole. And if not as to them, how can it be so described and claimed by a lower proprietor? It is their part of the channel and their part only which the State has been thus using unin- 1751 terruptedly for now more than thirty years, as a convenient conduit to transmit the surplus v/ater of the canal from the hydraulic basin in Lockport to the upper basin, as it is com- monly called, in Joliet. If a detriment to them, they have not complained; if an advantage they have no reason to com- plain. They can be presumed to claim no right in the water, except this, that while passing through their possessions in its transit from one point to another of the canal, for ulterior use by the State, they as an incidental necessity of the case, may and must enjoy the advantages of it. (24) 6116 And between themselves, doubtless, while the water is thus suffered to run, each lower proprietor as against those above him has a right to demand for himself the full, un- obstructed enjoyment of the improved flow. But whatever the relation between the State and them or between them- selves, these relations cannot rationally extend to affect one way or the other those above or below them. The proposition of the counsel on the other side, then, is at last cut down to this: — tliat if A, in the process of trans- mitting the water of No. 2 from one side to the other of No. 1, is compelled for a part of the way to use or does use a part of the channel of No. 1, which does not happen to be- long to him as riparian proprietor, then and in that case, Vvdiatever his intentions the instant the water is poured into that portion of the channel; he can no longer jmrsue his ex- clusive claim to it and utterly loses his right to transmit it across for his own use on the other side. By force of some metaphysical principle of law, it becomes indissolubly an- nexed to No., as a part of itsAnatural, customary and or- dinary” flow, and B, and not only B, but C, T) and B down to the very mouth of the sti*eam, though contributing nothing to the expense of construction, repairs or operation, and though, not only not injured, but in fact greatly benefited by its o])eration, as in this case, can come into a court of jus- 6117 tice, and, thanking A for nothing, claim the water he has been at so much trouble to secure, as their own. On what principle of justice, intelligible to a judge, can such a claim be set up? In this age, courts, while strictly observing the mandates of positive law and adhering to es- tablished precedents, are not accustomed to favor technical notions tending to defeat manifest right; and the law of water courses, forms no exception in our jurisprudence. This court, we think, will say to the appellant, what dif- ference does it make to you, whether the land bordering on (25) the river, in Secs. 22, 23 and 27, in the Town of Lockport, 1752 Brief for Appellees, App. Ct. — Driiley vs. Adam. — Con. and Sec. 3, in the Town of Joliet, belongs to the State or to individual proprietors? If the State owned the land, or had express permission from the owners to thus use their portion of the bed and banks of the river as a convenient conduit to convey the water of its canal from one point to another, you hardly pretend that you would have any rea- son to complain. AVhat better reason have you, if without any formal grant, these owners have now for more than thirty years acquiesced in such a use without objection and without asserting against the State any adverse riglits for themselves, by reason of it; or, if so, certainly without as- serting any which concern you, or were for your benefit, or have any possible regard to your interests? 6118 The fact, then, that this link of communication between the hydraulic basin, at Lockport, and the upper basin, in Joliet, into -which the river discharges as a feeder, does not belong to the State is, I submit, (piite immaterial to the argu- ment. It is a circumstance affecting only and exclusively the relations between these ])articular intermediate owners and the State. In fact, for fully two-thirds of the way, as will be seen, the river runs through canal lands, which must be supposed to have been sold subject to the right of the State to the use of the channel. But those also who pur- chased from the Government of the U. S. must have clone so after the plan of the canal connecting with the Desplaines Eiver as a feeder was adopted, and with full knowledge of and reference to it. If ever there was a case of prescriptive right, here cer- tainly we find a right by prescription in the State to em- ploy this section of the river channel as a connecting link between the two canal levels, for the ])urpose of transmit- ting the surplus water from one to the other. It is a case strongly reminding us of the language em- ployed in a decision already (juoted: “It would be a harsh rule to require those engaged in these enterprises to con- struct (26) an artificial ditch along the whole route through which the water was to be carried, and to refuse them the economy that nature occasionally affords in the sha])e of a dry ra- vine, gulch or canyon?” 6119 AVithout ])ursuing this head of the argument further, the counsel for ap]>ellees respectfully submits the following ))rop- ositions as maintained: 1. That the a])])ellant is only entitled as against the State to the natural and customary flow of the Desy>laines River; and can only coni])lain of a diversion in res])ect thereto. 2. That the surplus water derived from Lake Michigan, in 1871, is in no sense a part of this natural and customary 1753 flow, unless that character is impressed upon it by the cir- cumstance that between the hydraulic basin at Lockport and the upper basin at Joliet, it is conveyed in the channel of the river, running by the side of the canal, and employed as a convenient conduit provided by nature, and presumably with the consent of the riparian owners. 3. That this accidental circumstance does not change the rights of the State in the water as the proper surplus water of the canal, because there was no intention to abandon its use, in the sense of any of the adjudged cases cited to sup- port that position; but, on the contrary, a manifest intention to resume it for further canal use. 4. That the ]^eculiar occasion on whicli the City of Chi- cago undertook to flnish the canal accoi'ding to its original plan, in no way affects the rights of the State in the owner- ship and control of the sur])lus water furnished by the 6120 deep cut. 5. That the general ])olicy of canal administration, as well as the canal laws of Illinois, contemplate and recpiire the leasing of water power, wherever it can be profitably de- veloped as a source of revenue, whether with or without ac- companving (27) water lots. Hence, we contend there has been no diversion from the plaintiff by the State. 6121 I 1. THERE IS NO RIGHT OF ACTION AGAINST THE APPELLEES. This branch of defense, although inferior in public inter- est to the proceeding, is met in the record and can not be passed over without notice. The suit evidently is an attempt to esca]>e the constitu- tional provision which prohibits the suing of the state, and also the statute which extends the same exemption to the Canal Commissioners. IT St. Ch. 19, $3. It has thus been declared the pulilic ])olicy of Illinois, that in controversies of this sort, between the state and individu- als, if wrong has been done under the authority of the state, resort shall be had to the Legislature for relief. The ap- pellant deemed this remedy rather unpromising and so has sued the lessees of the State, Slater oor mill-privilege improved by the State into first-class property. See Pec., p. 23. The case of Elliott v. Fit eh. B. B. Co., supra, declares substantially the same principle as that announced in the California cases. It holds, in effect, that when A takes out from No. 1, only what he contributes from No. 2 (his own 6161 reservoir), B cannot complain of a wrongful diversion; and this, not upon the principle of set-off or compensating ad- vantage, but upon the general ground of reason and justice, that when a party withdraws from a water course no more than he adds to it by his own improvements, it is no diver- sion. In the ini])ortant case, of the Soeietij for Establishing Manufacturers \. Morris Canal Co., 1 N. J. Ecpiity Eeports, 157, argued by most dsitinguished counsel of the New York, 1775 Pennsylvania and New Jersey, l)ar, tlie opinion of Chancellor Vroom is very emphatic as to the right of the defendant, The Morris Canal Co., to introduce into the Eockaway Kiver the water of Lake Hopatcung, and a l)rancli of the Earatan, and then take out of the Eockaway below, sufficient for canal I)urposes, if not thereby diminishing the natural flow of the stream. ‘‘If, then,” says the learned Chancellor, “the de- fendants take from the Eockaway no greater quantity of water than they bring in (and they claim the right to do no more), will not the Society (the complainants) enjoy their privilege (24) without' diminution or alteration, or can they in anywise be injured?” The court in this case clearly recognizes the right of the Canal Com])anv to use the Eockaway as a common channel to conduct the extra water to a certain point and re- sume its use again for the ])ur])oses of the canal, notwith- standing tlie fact that this water was not returned to the Pas- 6162 saic till it passed the great falls at Paterson, where com- plainants’ manufactories were established. In opposition to this current of authority, we have failed to discover a single case, that when fairly read, and with careful reference to the state of facts which molded and gave com- plexion to the opinion, can be regarded as holding the con- trary. All such as are su])posed to bear adversely will be found distinguishable l)y one or both of two features: 1. The controversy was not between A and B (if we may still use our hyimthesis, as a convenience), but between B and C. C, a still lower riparian proprietor, claiming as against B, that he (C) had a-right to the benefit of the water abandoned by A, the uppermost owner, to the general future use of all the lower ])ro]ndetors on the stream. Tourfelotte v. Phelps, 4 Gray, 370. 2. In none of the cases where A was forbidden to divert the water contributed by himself, will it appear, that he liad made the contribution, as in the case at bar, under a compre- hensive, connected plan, executed by a train of suitable struc- tures, to u'ifhdrau' it again, u]mn his own premises; but, un- der such circumstances that it was characterized as a per- manent, irrevocable dedication to public use. Having once thus ' ‘ah an cloned” it, he was not permitted to revoke the 6163 gift. Yet it wull throw some light on this ])art of the argu- ment to consult also the following autliorities on the subject of artificial water courses: Wood V. Waugh, 3 Exch., 748. 1776 Brief for Appellants, Sup. Ct. — Brnley vs. Adam. — Con. (25) Angell on W. C., Sec. 433 (note 1). 2 Wash. E. Pro., 329. Caved v. Martyn, 115 E. C. L. Broom’s Leg. Max., 375. From these, it will be seen, that so strictly have the rights of riparian proprietors been limited to the natural flow of the stream, that in cases where artificial tributaries had been continued in operation for more than twenty years by A, B, nevertheless, was held to have acquired no prescriptive rights) therein. This strongly illustrates our position. If A can thus at any time ad libitum cut off the artificial tributary No. 2, and divert it into some other channel than No. 1, we ask on what principle can it be maintained that he may not^ with as little injury to B’s legal rights, use his own part of No. 1, as a channel to pass the water from one point to an- other of his own premises? How is B injured in one case more than in the other? Upon this point we cannot conclude without again quoting a little more at length from Hoffman v. Stone, cited supra. 6164 The action, as we have already stated, was brought by the owners of a ditch (which received its supply of water from Butch Creek, or ravine, near its mouth), in El Dorado County, for the purpose of procuring a perpetual injunction against the defendants, restraining them from diverting or appro- ]udating the waters of the said ravine. The defense was, that Dutch Gulch was usually a dry creek, affording no nat- ural water during the summer months, and that the defend- ants, in order to connect two of their canals, had precipitated the water from the upper one into the creek, and taken the same out again, by means of a dam, into their lower ditch, and that they had not interfered with the natural water of said ravine. The court, speaking through Chief Justice Murra^y, said : ‘‘The former decisions of this court, in- cases involv- ing the rights of parties to appropriate waters for min- ing and other (26) purposes, have been based upon the wants of the com- munity, and the y)ecadiar condition of things in this State (for which tliere is no ])recedent), rather than any abso- lute rule of law governing such cases. “The absence of legislation on this subject has de- volved upon the courts the necessity of framing rules for the ])rotection of this great interest, and in determining these questions ire have conformed as nearly as possible to the analogies of the common lau'.’^ 6165 1777 '‘In the case before ns it is shown that Dutch Gulch was a mere torrent, dry at certain seasons of the year; that it was used by the defendants as a part of their ditch for conducting water from another stream down to their dam. That in point of fact the water so brought to Dutch Gulch, and turned in there by defendants, was not abandoned by them, but was turned in for the pur- pose of being conveyed to their dam. That there was, at the time of the commencement of this suit, no natural water flowing in the Tied of the stream, and that all the waters so diverted by the defendants were artificial, or waters conducted there by them.” "The plaintiffs being the prior locators, it would follow that any interference with the waters of Dutch Gulch would be an infraction of their rights. But the appro- priation of the waters did not give them the exclusive use of the hed of the stream. We see no reason why it might not be used by others as a channel for conduct- ing ivater, so long as it did not interfere ivith their rights. If the defendants were diverting the natural water of the stream, as well as that brought into it by themselves, then the plaintiffs would have a just cause of complaint. It would be a harsh rule, however, to require those en- 6166 gaged in these enterprises to construct an actual ditch along the whole route through which the waters were to be carried, and to refuse them the economy that nature (27) occasionally afforded in the shape of a dry ravine, gulch or canyon. It is contended, however, that this case falls within the rule of Eddy v. Simpson, 3 Cal., and Kelly & Co. V. Natoma Water Co., Jan. T., 1856. We do not think so. The verdict of the jury finds that the water was not abandoned by the defendants, and left to find its way by natural channels into Dutch Gulch, but was turned in by the defendants, making a connecting link of their ditch. ’ ’ We now submit, that both on principle and authority, the State of Illinois, as the upper riparian owner, has the right to withdraw from the river Desplaines a quantity of water equal to that which it contributed from Lake Michigan, pro- vided that it is done on its own premises; that its rights have not been relinquished by contract; and that it has. done no act operating as a final and irrevocable abandonment thereof to public use. THE CREATION OF WATER POWER WAS ONE OF THE OBJECTS CON- TEMPLATED IN THE ORIGINAL PLAN OP THE CANAL. An attempt was made in the argument of our opponents 1778 Brief for Appellants, Sup. Cf. — Druley vs. Adam. — Con. in the court below, to show, by referring to the several acts of the Legislature, under which the Deep Cut was completed, 6167 that the water thus obtained loses its character as the prox^er water of the Illinois and Michigan Canal, below the Summit Level ; and it seems to have made more imx)ression ipDon the Appellate Court than we anticipated. It is a matter of public history well known to the court, that the original and long cherished jDlan of the canal was to supply the Summit Level from Lake Michigan, precisely as it is now sup|3lied. Much of the work, in fact, had been done before the suspension, which occurred in 1840. AYhen the enterprise was resumed in 1845, under the well remembered trust created to secure the bondholders, the then embarrassed financial condition of the State compelled a relinquishment of the original (28) scheme, and the substitution of what was termed the ‘Liaised or shallow cut,” to be supplied by pumps at Bridgeport, with the aid of the Calumet Feeder. In 1865 the City of Chicago found itself confronted by the formidable problem of drainage, for the health and comfort of its citizens; and deeming that this object might be pro- moted if not effectually accomplished by completing the old deep cut, already partially excavated, asked permission of the State to take hold and finish the work. Permission was given by the act of 16th April, 1865, entitled ^L4n Act to provide for the completion of the I. S M. C. upon the plan adopted by the State in 1836.” Besides this title, which seems sigmifi- 6168 cant enough, the x:)reamble to the act contains a reference to the past history of the improvement, — the original plan, — ■ ‘4ts abandoment for the time being,” — the precarious and unsatisfactory nature of the mode of sip^iDly from the Calu- met feeder and hydraulic works at Bridgex^ort, and the great benefit to the canal itself to be exxoected by deex:>ening the cut. See Public Laws, 1865, pp. 83-4. The work accordingly was undertaken and was comx^leted in 1871, at an expense of several millions of dollars, and the cost soon after refunded to the City of Chicago by the State. AVith all due respect to the Ax3pellate Court, we must say, as we said on a x3revious occasion, that we deem it unnecessary to seriously argue the x^oint which counsel had suggested, based on the sx^ecial circumstances that led to the execution of the improvement. Is it not enough that it was in fact made? Is it not enough that the deep cut is in fact an inte- gral .part of the whole canal? Is not the condition of the case, for all legal x^uiqooses, x^recisely the same as if the work had been done in the first instance by the State, instead of by the 1779 City of CliicagOj and done in 1848 instead of 1871? Can this part of tlie canal, now that it is finished and paid for out of the State treasury, be (29) distinguished from any other part, as to the jurisdiction of 6170 the State over it, or over the water in it, in any respect what- ever? EIGHT OF THE CANAL COMMISSIONERS TO CREATE AND LEASE WATER POWER. But again, the counsel for appellee, in their previous argu- ment, expressed a doubt, whether it was quite according to law for the Canal Commissioners to create and lease water power to help repair, improve and support the canal; and to sustain this view, ransacked the canal lavrs ab initio, not for- getting the act of Congress of 1822. To this somewhat remarkable position we reply: 1. While navigation is the primary and cardinal object of every navigable canal, yet, to create water power as an incident, has been the universal policy of such enterprises, whether undertaken at the public expense or by private cor- porations. The disposal of the water in descending from one level to another must necessarily be in the control of the State, and the public good, as we had supposed, demands both that it should be utilized in aid of the manufacturing inter- ests of the country and made to contribute as far as possi- ble, to the expense of maintaining the work. Such, at all events, we know, has been the unquestioned policy of the Illinois and Michigan Canal, for more than thirty years. No express statute indeed was required to make it the bounden duty of the Canal Commissioners, in the vigilant fulfillment of their public trust, to add in this way to the limited reve- 6171 nues of the canal, wherever they found it practicable. The particular details of administration in respect to this branch of their official charge, are necessarily confided to their own judgment and discretion. Special occasions have arisen and may again arise for special statutes on this suliject; but the particular methods of creating water (30) power at any given place must, as a general rule, be a ques- tion for the commissioners, with the advice of their engi- neer. 2. The statute regulating their powers and duties ex- pressly gives them a plenary authority to lease water power; as a recognized source of canal income. E. St. (1874), p. 189, Sec. 8, Ch. 19. 1780 Brief for Appellants , Sup. Ct.—Druley vs. Adam. — Con. The expression here used ‘^and lands and lots connected therewith/^ cannot well be construed as intended to exclude cases where the State happened to own no lands or lots ad- . joining the locus of the waterfall. Ordinarily such a con- nection would exist, but it would not, where the site occurs on a school section, as is the case here, or on Government lands. Still, unless the two subjects enumerated in tlie clause ‘‘waterpower” and “lots” are, from their nature, indissolu- bly incorporated together, as objects of sale or contract, they are to be taken severally. We are to look at the main de- sign of the law; and that we cannot doubt was to utilize the surplus water for the benefit of the State, wherever possible to do so. 6172 3. But lastly, the question is entirely immaterial. If the appellee is legally entitled to the water, the point is need- less; — if he is not, of course its use by the commissioners is no concern of his. IS THE WATEK ABANDONED AT LOCKPOET? It was contended, by our opponents, and the Appellate Court seems to have yielded to their reasoning, that admitting the general principles under which we claim the right of the State to draw out above the appellee’s dam the water derived from Lake Michigan, yet they are not available to us in this case; that they apply only where he who asserts them is riparian owner continuously for the whole distance, from the point of introduction to the point of discharge; that here the State (31) is not shown to own any land upon either bank of the Des- plaines River between Lockport and its junction with the canal in the upper basin at Joliet; and that the water being thus allowed to escape into a foreign water course, at a point where the State has no rights as a riparian owner, it must, therefore, be deemed to be abandoned, and that being aban- doned it is thenceforth incorporated with the proper water of the river, so far as respects the rights of the riparian owners below. THE INTENTION OF THE STATE. On this point, to which the opinion of the Appellate Court 6173 gives prominence, our first inquiry will be, what was the intention of the State as evinced in the plan of the canal 1 For it will be difficult to maintain, that anything is effectually abandoned, which the owner evidently purposes to imme- diately resume and control for his own future use. To begin with, the entire plan of the canal is to be treated 1781 as a unit, and viewed comprehensively; each part in its rela- tion to every other part, however remote. The chain or sys- tem of structures composing it as a whole, must be surveyed, also, in connection with the physical peculiarities of the re^ gion through which it passes; for, in planning such a work the engineer must necessarily adapt it to the contiguous lo- calities. The relative course and com]uirative levels of the river and canal between Lockport and Joliet are shown, in a general way on the map which the court has before it. These conditions, are such, it will he seen, that the sur])lus water discharged at Lockport. thromrh Norton & Co.’s tail race and through the waste weir, necessarily seeks and pursues the natural depression constituting the channel of the Des- plaines Elver for a distance of about three miles, joining the canal again between Lock No. 4 and Dam No. 1. And this is called an irreclaimable abandonment, operat- ing (32) to extinguish any proprietary rights of the State in the water, and making it in a legal sense at least as to the appellee, 6174 Adam, a constituent part of the proper customary and nat- ural flow of the Desplaines Eiver! But now let counsel explain what they mean by abandonment? The only force of the term as here used is to signify some act or default of the State, by which it loses its jus disponendi in the water, as a subject of future exclusive control. What is it? Where do we find it! No actual personal intention to abandon in this sense can be imputed to the commissioners; for that is conclusively negatived by the very facts which led to this suit. The surplus in (piestion had only come into existence in 1871, and during this short interval- there surely is noth- ing shown in the record to indicate any such intention on the part of the canal authorities; no act, no declaration, no prolonged non-user, which can possibly be construed as hav- ing that effect. Indeed this lease to Slater & Druly in 1878, may have been and ])robably was the first opportunity that offered for a lease of water power on this new plan, below Dam No. 2. Possibly the plan itself had not before occurred to the commissioners. At all events, there is nothing tending to show any actual purpose of the official representatives of the State to abandon, in the sense here supposed. Again, no abandonment could be predicated upon the bare fact that the water is transferred from one level to another, provided it passes all the way through the prism of the canal or some appurtenant channel belonging to the State, made 6175 for that very purpose. Nor, upon the supposition that the water has been permanently and finally detached from its 1782 Brief for Appellants, Sup. Ci. — Bruley vs. Adam. — Coii. relations to the canal; because, it is obvious that it is (iestined to the taken in again but a short distance below, and, that, too, as a necessaiw physical consequence of the plan of the canal itself. This return of the water to the canal is just as certain to take (33) place as if the water descended from the one level to the other between the very walls of the canal. Where then is the abandonment! It must consist, if at all, in this; — that in descending from one level to another, it makes a short detoiir through a foreign channel, situated most conveniently for the purpose, but which unfortunately does not for this intermediate distance belong to the State as ri- parian owner. This circumstance, quite unimportant one would think, to the beneficial rights of Mr. Adam, suggests to his counsel the notion that the instant the water passes from the premises of the State, although immediately re- turned again and found in the canal, long before it reaches the boundary line between the State and Adam, it becomes transformed as to him into ‘‘the natural, proper and cus- tomary flow’’ of the Desplaines Eiver. Does not this ap- proach absurdity! The waters are mingled, it is true, and can no longer be dis- tinguished and identified. But, as we have previously re- 6176 marked, this identification is not necesasry to a proper ad- justment of the substantial rights of the parties concerned. The water is recognized in this action only in its character as an agent of mechanical power; and any one cubic foot of the fluid, under the same conditions of fall, is precisely the same as any other. When two or more mill owners are in- terested in certain proportions in a volume of water thus mingled from different sources, the quantities belonging to each can be measured with reasonable certainty, and their relative rights duly ascertained and enforced'. If Mr. B, in our hypotliesis is entitled to receive and does receive 10,000 cubic feet of water at his mill, how can it concern any rights or interests of his, from whence it comes, or through what previous conditions of transmission it has passed, before reaching his pond! A court of justice will not perplex it- self with such fruitless and senseless trifling. It will define nothing as even a technical riparian right except such as may be supposed to be in some possible (34) way and some conceivable degree l)eneficial to the plaintiff. But this confusion of the element of water as a mechanical agent, by the necessary intercommunication occurring between different water courses, can produce no injury to any party in- terested. Hence, we assume that the legal status of, the waters in question here cannot be affected in tlie least by the mere circumstance of having thus commingled in one stage of their course. 6177 Again, we ask, where does the abandonment come in! It does not necessarily result from the mere fact that the State is not riparian proprietor in fee on the Hesplaines con^ tinuously from Lockport to the point of junction at Joliet. Suppose the State had procured a lease or the written con- sent of all the land-owners on both sides of the river to so use the channel. Would not this have obviated the ground ^of objection! We have indeed no proof of any such written consent from them; but suppose that for thirty years they have in fact made no complaint of this use by the State; and have thus tacitly and impliedly acquiesced, would not the effect be the same! Now, this happens to be the precise truth here, as we may fairly infer from the record. From the very beginning the State was known to have appropriated the river to its service as a feeder, in respect to whatever water it could supply from its own sources and affluents. It is in fact named as a feeder in the Haven’s release. (Record, 25.) And this additional but homogeneous use, even if it could not be claimed as a matter of right, was not and could not be objected to by the land owners who were already subject to the prior easement. The improved flow across their own premises could be no possible detriment to them. Those who owned mill sites would hardly object to the free gift of 25,- 6178 000 cubic feet of water per minute to turn their wheels. They would have acquired, indeed, no vested right in this improved flow, and the State could withhold it any day, with- out afford- (35) ing just ground of coni]:)laint; but while permitted to enjoy it they must be presumed from the dictates of self-interest to consent to the use of the channel made by the State for its own ulterior purposes. Now, if the river was employed as a medium of transmission with their consent, as we must presume, is not the case essentially the same as if the State happened to be riparian proprietor in fee continuously from Lockport to Ham No. 2! But even without and against their consent, the result, we submit, would still be the same — so far as the appellee is concerned. It would in that case be exclusively and strictly a question between the State and these riparian proprietors, not affecting or concerning those above or below them in the least. If the State made an unauthorized use of their respective portions of the river, detrimental to their rights. 1784 Brief for Appellants , Sup. Ct. — Driiley vs. Adam. — Con. justice would dictate that they should have redress. But how would this wrong committed upon them individually, have any proper bearing on the question, whether the State, as to Adam, had abandoned the water for his benefit? It is quite indifferent to him, one would suppose, under what re- lations as between the State and these upper proprietors 6179 the water might make its way down to Dam No. 2. In either or any case it is inevitably destined to rejoin the canal. and is aecompanied all along with the constant intention of resumdng control of it for alleged canal purposes. SUMMARY. We conclude, then, as to our first and main proposition:' 1st. That an upper riparian proprietor upon a natural water course, who within his own domain puts in water from an exterior source may again take it out, unless between the points of introduction and discharge, he has done some act or placed the water under some local conditions which, in reason (36) and law, amount to a renunciation of this right of exclusive control. 2d. That the record here discloses no such act, and no such local conditions. 3d. That it is immaterial to the issues here how the dejep cut happened to get finished, or how tlie City of Chicago was interested in the flow of water, as affecting her problem of drainage. The summit level is at all events a constituent, integral part of the canal; and the water received into it is in precisely the same legal predicament, as if the work had been done by the State in the first instance. 4th. That except as the proposition may be qualified by special contract in respect to the rights of particular indh 6180 viduals, all water received into the canal from whatever source, or to subserve whatever incidental object, is to be deemed the proper water of the canal to be used for all proper canal purposes; that it has universally been recognized as a legitimate object and economy of canal management to cre- ate and lease water power wherever practicable; that our statute recognizes the object in express terms, and that the rig'ht of proxoerty in the State to the water in the Illinois and Michigan Canal, with respect to that object, rests upon the same grounds as its right to water needed for purposes of navigation. The rents from mills is as desirable and legiti- mate a source of canal revenue as the tolls from boats. 5th. And finally, that for these reasons there has been no diversion from the mill of appellee, unless the rights of the 1785 State, in the surplus water first created in 1871, have been in some way abridged by the transaction with Haven, and Haven, in 1853. This matter of the release will be considered hereafter. (37) II. THE DIVERSION, IF ANY, BEING CONSUMMATED AT DAM NO. 2, IT CANNOT BE IMPUTED TO THE LESSEES OF WATER POWER ON A LOWER LEVEL, AS THE RESPONSIBLE AGENTS THEREOF. 6181 The oat mill of the defendants is situated on the berm bank of the canal, about a mile below Dam No. 2. At this dam, the water, that is not suffered to flow into the channel of the river and thence down to appellee’s mill, is discharged into the Channahon level through the lock and a bulkhead, con- structed for the ])urpose. At this point, as the court has seen, the canal has entirely completed its crossing of the Desplaines Kiver and from thence onward ])ursiies a separate and independent course. Hence the instant the water leaves the pool of the dam and descends into the Channahon level it becomes by a physical necessity forever detached from all relations of riparian right with the river and the mill and dam of the ])laintiff. When it reaches, a ])oint opposite the defendant’s mill, it can no more be identified or recognized as river water than at a point ten miles below or at Ottawa or La Salle. The act of diversion, therefore, that act which completely accomplishes the injury to the plaintiff, if any there be, takes place at Dam No. 2; for it must ex vi termini consist in that operation, or series of operations, by which the water, in- stead of being suffered to flow over the dam into the river 6182 channel and down to Adam’s wheels, is irrevocably turned away in another direction. And in this operation, per- formed as it must be, by the functionaries of the State, in the official administration of the affairs of the canal, the defendants, we humbly' submit, can be supposed to exercise no responsible agency. The stage of water in the Channahon level from time to time, and (38) the methods of supplying it, are matters of exclusive official cognizance and regulation, in which third persons have no concern. The water being by this process already irrevocably di- verted x\dam, as a riparian proprietor, has no further con- 1786 Brief for Appellants, Sup. Ct. — Druley vs. Adam. — Con. cern with it. In its mere character as a physical substance, he sets up no right to it in this suit. The use is all he claims, and he can assert no usufructuary right, except where he finds it existing under such local relations to his mill, that he himself could use it as a motive power, if the defendants did not. But is it not obvious, that when the water has reached down to a point opposite their head gates, it can be of no benefit to him in any possible event, and it therefore can be no injury to him, if used by others! If the use of it by Slater & Druly was no legal injury to him, how can it be de- nominated a diversion in the sense of the law? Does it not seem too plain for serious dispute, that the act of diversion, if any, is performed at the point where the road forks, so 6183 to speak, and is there performed by the sole agency of the officers of the State, in the execution of their public duties! The only claim of the appellee to the water, we repeat, is that of user for hydraulic purposes at his mill, and so the declaration expressly describes it. He asserts no right to it otherwise; and this usufructuary interest is only supposable under conditions which make it possible for him to use it at his mill. After it has passed down and out from these conditions, and is found in some place entirely be- yond their range, certainly it can no longer afford a cause of action to him. But it is said, that the lessees of the water power became joint wrongdoers with the official agents of the State, by accepting the lease. They knew, or were bound to know, that the water they contracted to receive was due to Adam, and thus in law became parties to the diversion. We can- not think the view tenable at all. While the State in its relations with its citizens is in jus- tice (39) bound to afford redress for wrongs of this description, if wrongs they be, done under its authority, yet it is an express requirement of our public policy, that relief in such cases should be sought from the Legislature by ]jetition, rather than from the courts by action. Xo application of this principle can be more obvious, than to the affairs of the canal ; and es- 6184 })ecially to a case like this at bar. The commissioners, and their executive officers, by authority from them, are invested with entire jurisdiction over the canal and its waters and over all its operations in regulating the stage of water from time to time on the several Jevels. In dealing with these representatives of the State in respect to the water of the canal at any given ]mint in the line, it would be most unjust to ask private individuals to inquire at their peril as to the particular sources from which the water was derived, and the 1787 special conditions of private right to which it might be subject here and there. There is the water, within the banks of the Illinois and Michigan Canal, in the undisputed and absolute possession of the agents of the State; a possession, which whether right or wrong, no one can interfere with. What could Slater & Druly be supposed to know, when they took their lease, about this old Hhvens settlement in 1858, if in- deed it ought to cut any tiguie in the case at all! The persons controlling and regulating the stage of water in the several levels, and its transmission from one to another were public officers, acting under official responsibility, and presumed from every prima facie indication of authority, to be acting rightly. Ballance v. Uuderhill, 3 Scam., 453. Glancy v. Ellcoft, 14 111., 456. Todemier v. AspUurcdl, 43 Ilk, 401. 6185 They appeared to be in the full undisputed possession of the water; and, by all the analogies of the law, that posses- sion was presumptive evidence to third persons of a plenary (40) right to control it. In fact the presumption ought, we think, to be stronger here, than in ordinary cases of the possession of property, which could be physically identified and dis- tinguished; for, it is impossible to make any discrimination, based on diverse proprietary rights, in regard to the aggre- gate mass of water contained in the canal. But it may be argued that the defendants knew the local relations of the canal and river, and therefore the rights of Adam; because, these rights were inferrible from those relations. This would be carrying the rule relied on very far. Two courts have passed on the question and have differed diametrically in their opinion. Were these plain grinders of oat meal to ^Baiow the true prince by instinct,” when wfise judges thus differed, after elaborate argument! But the learned judge delivering the opinion of the Appel- late Court, places his main stress, if we understand him correctly, upon the release from Haven & Haven, as going far to establish the rights of Adam. A¥ith all due deference, we cannot but think and shall endeavor respectfully to show, that the court was here in error; but, be this as it may, what evi- dence is there in this record, that these lessees before this suit was brought knew anything about that release! And 6186 w^hat wms there to put them upon inquiry! When public officers, in managing public property, under a discretionary legal authority, which is prima facie sufficient, contract in any instance with individuals, and under that con- tract act jointly with them, the scienter, the tortious intent 1788 Brief for Appellants, Sup. Ct. — Druley vs. Adam. — Con. would seem to be indispensable to make their co-contractors joint tort feasors. Hilliard on Torts, Vol. 2, pp. 155-255. Main v. McCarty, 15 111., 441. Jermaine v. Wagner, 1 Hill (N. Y.), 284. In the case last cited, decided by the Supreme Court, of the (41) State of New York, acts done under the authority of the Canal Commissioners of that State were sought to be justified ‘be- cause the canal commissioners had jurisdiction of the subject matter;” and it was argued, that ^‘although the latter might not be protected, yet the defendants should be, inasmuch as they acted under the direction of a body which was prima facie authorized to give the direction.” The court seem to have fully recognized the general principle for which we con- tend, but held in that case that the commissioners had no prima facie authority. In this connection, it may not be unworthy of notice as a consideration of some significance, that the Canal Commis- sioners are themselves exempted bv law from being sued. E. S., Ch. 19, Sec. 3. 6187 The object of this is manifest. It was deemed mischiev- ous to the public interests, that the acts of the commission- ers, who are declared ‘Hor all legal purposes” to be ‘‘officers of the State” should be left liable to the vexations and ob- structions of daily litigation. How far this exemption ought to be extended, or whether it is subject to any exceptions, we need not say. It is very clear, at all events, that a case like this, of all others, falls within the scope of the policy thus established. This on its very face is a square direct con- test between William Adam and the State of Illinois ; involv- ing a question of public concern; whether the surplus water drawn from Lake Michigan by a cut through miles of solid rock at a cost of millions of dollars, belongs to him and his little 7 by 9 mill, or to the State of Illinois. If he is aggrieved by the State, the constitution denies him any method of re- dress, save one supposed to be ample under a just and en- lightened government, and that is, to lay his case before tire General Assembly. But this he conceived would be an incon- vient, perhaps an expensive, and certainly a very hazardous experiment; so he (42) casts about him for some way to evade the constitution and the laws, and finally brings suit against these innocent lessees, who had erected a large and expensive mill, upon the faith of their contract with the official agents of the State of Illi- 1789 nois. The point we have been considering is entirely need- 6188 less, as we suppose, for our defense, and we shall expend no more labor upon it; but it will be for the court to say, whether such a suit is not a palpable evasion of our oplicy, as to the administration of public property ; and if so, whether it ought to be favored or maintained. If the tort is by statute no tort against the State or its officers, ought it in justice to be held a tort against these lessees? If not, how can they be described as joint tort feasors, upon the general principles connecting joint trespassers in respon- sibility? III. THE HAVENS RELEASE. The point made on the trial of the cause, that the release executed by the plaintiff’s grantors. Haven and Haven, in 1853, operated as a bar to the action, we do not care to press at much length in argument here. It does not touch the main and really interesting question in the case, on which the opinion of the court is desired ; and is we hope, entirely super- fluous for any necessary purpose of defense. A word there- fore in reference to it will suffice. The question is one of fair construction. One expression in the release, if taken literally, limits its operation to ‘‘pur- poses of navigation as contradistinguished from any other purpose.” It is argued, and, we confess, not without plaus- 6189 ibility, that this excludes the idea of a full and complete power of disposition over the water taken. But the grant, although expressed to (43) be for “purposes of navigation,” was in practical effect a grant of the entire stream; unless construed as subject to a tacit condition that the trustees should always maintain its other feeders in statu quo, and that the Desplaines should only be required to furnish for purposes of navigation, its proportionate share, in conjimction with those other feeders. We are not convinced that the trustees in this compromise meant to so bind themselves. It would hardly comport with public policy, that the rights of the State in reference to any one of its several feeders should be hampered by such a re- striction, precluding it from any future change in its system of supply, however expedient, without incurring the risk of for- feiture. We think, that while it was not then deemed prob- able that there would be any material alteration, yet, the river was turned over to the trustees as a feeder for any and all 1790 Brief for Appellants, Sup. Ct. — Dndey vs. Adam . — Con. the uses and purposes attributable to any canal feeder. To employ the term ‘‘for purposes of navigation/’ as a term of cautious limitation, in connection with this contemptible rivulet and the Havens’ still more contemptible interest in it, would have been ridiculous. If the State bad the right to the whole of it, irrespective of other feeders, to fill the level, it was perfectly well known that there never could be to the end of time a surplus to use for water power; and hence we 6190 felt justified in contending on the trial that the release, when fairly construed, was intended to be general and unlimited; and the entire waters of the river turned over to the trustees to use at their discretion. Even an arrangement of that kind must have been regarded by the Havens as highly advan- tageous to them; because this court had just decided in 11th 111. that they were riparian owners only on one side, that their dam was wholly unauthorized beyond the center of the stream, that they were at the mercy of the State, as the owner of the opposite bank, for their power; and that the}^ could expect no more than nominal damages by any assessment that the courts would sustain. The compro- (44) niise was assented to by the trustees, because on their part they did not choose to be harassed with perpetual suits for even nominal damages. The Appellate Court, however, if we rightly apprehend its decision, adopted the conclusion, not only that the release was no bar to the action, but that it even had the effect of giving to the plaintiff as grantee of the Havens, a right to claim as riparian owner this vast additional volume of water, 13roduced eighteen years afterwards by an improvement which entirely revolutionized the former system of supply — an addi- tion exceeding, probably, twenty times the natural flow of the Desplaines in 1853! 6191 Holding that court, as we do, in the highest respect, we must, nevertheless, be permitted to insist here most stren- uously and confidently that their position is unwarranted by any just construction of the release. The whole transaction between the Havens and the Canal Trustees had reference to the state of things then existing. The canal had been completed in 1848 upon the shallow cut or raised level plan, as the best the State in those hard times could do. Instead of a direct and never-failing supply from the lake, the level was to be supplied by the poor expedient of pumps at Bridgeport, reinforced by the Calumet, and the feeble and uncertain tributes in spring and fall of the little Desplaines. There are probably upon the bench of this court those who personally know how little anybody in Illinois at 1791 that early day expected the time would ever come, when this channel would be carved deep through miles of solid rock to the inexhaustible bosom of the lake. It is fair to affirm posi- tively, that neither of the parties to this agreement, the Havens or the Trustees, thought of such a thing as the ulti- mate finishing of the Deep Cut, any more than they thought of the millennium. In fact at that time the railroad era had dawned in Illinois, putting water communications completely in the (45) background, and making it exceedingly doubtful whether the 6192 State would ever spend another dollar on that kind of in- ternal improvements. But the release itself contains abund- ant intrinsic evidence, that the whole arrangement had ref- erence to the particular state of facts existing in 1853. It recites the claim of the releasors as riparian owners on the Desplaines Eiver, that they had suffered damage by the diver- sion of the water belonging to them as such owners, the legal proceedings pending to settle the questions in dispute, and the expediency of stopping the litigation, by compromise; and then proceeds to set forth the terms of adjustment agreed on. Some disputed questions, it is true, had already been adjudicated in this Court. Canal Trustees v. Haven, 5 Gil., 556. Same v. Same, 11 111., 554. In the first case, which went up on an agreement as to the facts, it was decided that the Act of Congress of 1822 did not apply to school sections, that although the Desplaines Eiver had been meandered, the grantees from the Government took to the center of the stream, and that the Havens were to be regarded as riparian proprietors, and as such entitled to recover for any diversion of the water of the river. In the second case, it was decided, that the Havens were riparian owners only on the east bank; but were entitled to at least nominal damages. Both cases, as will be seen, simply recog- 6193 nize the old familiar common law rules on the subject of riparian ownership and diversion. At all events, it is en- tirely certain that in neither was there a single intimation that the Havens occupied any other position than that of ordi- . nary riparian owners on a natural water course ; or that, from the peculiar relations between the river and the canal, they could claim damage for the diversion of any water other than that which could be shown to be the natural, customary and proper flow of their stream. (46) Nor did the release contemplate any extension or modifica- 1792 Brief for Appellants, Sup. Ct. — Druley vs. Adam. — Con. tion of their common law rights as riparian owners, further than this, that the State, as represented and hound by the canal trustees, might perhaps be held to have virtually ac- quiesced in their right to thereafter maintain their dam across the whole width of the river to the bank of the canal, using that hank for their west abutment ; — a right which they did not possess before. But the learned judge who speaks for the Appellate Court, argues, that at that time, in 1853, the surplus water from the summit level, discharged at Lock- port into the Desplaines, came down to the pool above Dam No. 2, by prcisely the same process as does the immensely increased flow now; and that the trustees, in accepting this release virtually recognized this surplus as a part of the legiti- mate flow of the river, for the diversion of which the Havens 6194 were entitled to damage. Where did the court find in the record in this case any warrant for such a proposition! Cer- tainly not in either of the decision of this Court which have been cited. Certainly in no express grant, declaration, or admission of the trustees, for they made none. Certainly not in the language of the release, because it nowhere speaks of the water in dispute, otherwise than as ‘Hhe waters of said Desplaines Kiver. ” But what were the waters of the Des- plaines Kiver! The particular point arising here was not referred to in either of the decisions of this Court. It is quite evident it was not considered in the assessment of dam- ages, from which the second appeal was taken. In the opin- ion (11th 111., 554), Justice Teeat speaks only of diverting the water of the river from its natural channel,” — ”of the use of the water as it is accustomed to flow along the chan- nel,” — of the right ‘Do use the whole of the water naturally passing down the channel,” — of the H’s being “entitled to use but half the water naturally flowing along the channel, ’ ’ — of their duty" “to use it as it is accustomed to flow down the channel,” &c., — language appro- . (47) priate only- to a case where the water in question was recog- nized as being that which was “accustomed” to flow through the water course under consideration. And what is meant in the text books and adjudged cases, by- water naturally flow- ing, and water accustomed to flow! Are not these the 6195 terms always used to define the ordinary and proper flow of a natural water course, with no possible reference to the exceptional case, in which an upper owner happens to have improved the stream from a reservoir of his own! In 1853, the canal had been in operation hut five years. During this time, it is true, the surplus from the summit level had passed down the river to its junction with the canal 1793 in the upper basin as it does now, and as the plan of the canal required. Was this sufficient to make it in the eye of the law an ordinary and customary flow? Could even twenty years have created a right by prescription against the State ? Could not the State, if it had chosen, and if it had been practicable, stopped at any time this flow through the river, and dis- charged this surplus through some other channel? Who can doubt it? But when the parties got together for a settlement, the occasion had passed for any such belligerent analysis of rights, and probably these considerations were not mentioned or thought of at all. How then can it now be contended that by accepting that release the trustees estopped themselves and estopped the State forever from asserting against the Ha- vens or their grantee, that the contribution to the river from the Lockport mills and spillway in 1853, was not a part of its natural and customary flow? This court once said: ^Ht is a familiar doctrine that the State is not embraced within the Statute of Limitations, unless specially named, and 6196 by analogy would not fall within the doctrine of estoppel. Its rights, revenues and property would be at a fearful haz- ard, should this doctrine be applicable to a State. A great and overshadowing public policy of preserving these rights, revenues and prop- (48) erty from injury and loss by the negligence of public officers forbids the application of the doctrine.’’ The People v. Broivn, 67 Ilk, 438. On this point, therefore, we conclude, that the Havens release is to be construed with reference to the state of facts or circumstances surrounding the parties at the time it wms executed; that in the suit of which it was the flnal adjust- ment, they appear to have set up no claim save that of ordi- nary riparian proprietors, that is to say, a claim to the water as it was accustomed to flow in the natural channel of the Desplaines Eiver; that there never had been a judicial de- termination or intimation, to the effect that the addition to that customary flow, produced by the discharge from the hydraulic basin and spillway at Lockport was or had become by lapse of time or contract or otherwise a part of such cus- tomary flow in any legal sense, and that there is nothing in the release itself importing any such claim. It seems ~roo plain for argument. One of two things must be true; — either the question was considered by the parties in their settle- ment, or it was not. If it was not, then the acceptance of 6197 the release cannot be now set up by way of estoppel to pre- clude the State or its grantees from raising the point; — if it u:as, then the terms employed conclusively demonstrate, that 1794 Brief for Appellants, Sup. Ct.—Driiley vs. Adam. — Con. the Havens did not expressly make and therefore could not he understood as intending to make any such claim. But be this as it may, even conceding that in 1853 the trustees in treating with the Havens did not choose to notice the distinction between the natural flow of the river and the artificial addition supplied from the canal itself, and were will- ing to recognize the whole aggregate volume indiscriminately as river water, — such an agreement as that even cannot be con- strued as contemplating or embracing the unlooked for state of things existing now. They, and nobody then could# have fore- (49) seen that in the lapse of eighteen years, by a somewhat re- markable and entirely unlooked for train of causes, the long suspended deep cut would at last be finished, the whole sys- tem of supply for the summit, Joliet and Channahon levels totally revolutionized: and the Hesplaines in its character as a feeder completely vriped out from the map. The first canon of construction in expounding contracts, and the one which really involves all others, is to get at the intention of the parties. To do this, the courts place themselves ‘‘as far as possible” in the position of “the parties when they made the contract, by possessing themselves of the circumstances 6198 which they had in view during the negotiations.” Stout V. Whitney, 12 111., 227. Wilcox V. McGhee, 11 Ilk, 381. Hadden v. Schoutz, 15 Ilk, 582. Now waiving all advantage from the rule that grants are to be taken most strongly against the grantor, and the equally familiar rule that in favor of the Government even its own grants are to be construed strictly as against the adverse party and favorably for itself, let us place ourselves in the canal office in 1853. The Hesplaines was not much of a stream, but the trustees wanted to control it as a feeder for whatever it was worth, without the liability of incessant law- suits. The Havens making their appearance before the board in a simple character of riparian proprietors on the east bank, as holding title to lot 1, ‘block 57, School Section Addition to Joliet, agree to execute a perpetual release of damages for $3,000. Suppose the president of the board had said — • “Perhaps the State may in a few years finish the deep cut, supplying, say, 25,000 cubic feet of water per minute, enough for navigation and an immense surplus besides for water- power at Lock])ort and Joliet. Xow if in this event she shall turn over Ham Xo. 2, into your mill pond, or at least double the quantity 1795 (50) of water you are getting now, and probably ten times what you got before the canal was opened, thus converting your 6199 little mill into first-class property, do you mean to sue any- body for damages, should our successors, the Canal Com- missioners, find it expedient to use the rest of the water some- where on the Channahon level!” Judging from this paper and the attendant circumstances, what likely would have been their answer! Tenacious as they had been of their rights, they had mever put forth a claim so absurd as this. They had never claimed a foot of water to which the}^ could not show themselves entitled as riparian proprietors by the strict rules of the common law. They had never sought to recover damages for diverting a foot of water which could not be legally defined as water ^‘accustomed” to flow in the I)es- plaines Elver. Their answer assuredly would have been: “We convey to you our rights, such as they are, in the Des- plaines as a feeder. You are of course at liberty to use it as a feeder as long as you choose, and to dispense with it whenever you choose, it is immaterial to us. If at some future time you or the State should abandon the present system altogether, so that instead of the river feeding the canal, the canal should incidentally feed the river, largely augmenting its flow, and enhancing our water-power, vre shall be duly thankful for such good fortune, and will give you bond and security never to bring suit against anybody for such a blessed diversion as that.” It is indeed hard to deal with a claim so provokingly ab- surd and unjust with equanimity and decorum, especially 6200 to one who has watched the water flowing over Earn Xo. 2 for thirty-five years, and seen the advancement of this poor, forlorn Havens mill to its present condition. Here the State of Illinois at an enormous expense has made this great im- provement for the general good. The canal at best has a hard time of it to get along, and sorely needs every dollar of revenue it can obtain from every source. It now happens to possess a large surplus (51) of water which is available with profit for hydraulic power. The fall of the canal is such that it can be rei)eatedly used, first at Lockport, again at Dam Xo. I, and finally at Dam Xo. 2. After the experience of a few years, the commission- ers have discovered that the amount of water at their dis- posal at Joliet is so great, that after leasing all that can possibly be leased to advantage at the dam, and after send- ing down to the appellee’s mill double the amount he had ever received before, there is still a considerable surplus that can 1796 Brief for J ppeUanis, Slip. Ct. — Druleij vs. Adam. — Con. only be utilized at all on the plan here brought to the notice of the court. Instead of leaving it as a monopoly in the hands of Adam and the several lessees at Dam Xo. 2, limiting the area of manufacturing establishments in Joliet to their par- ticular district, this scheme operates to distribute the bene- fit of this hydraulic power over territory well situated for such industries, adjoining the west bank of the canal for a long distance, perhaps a mile or more. But now this ap- pellee, ecpially grateful and modest, comes into court and 6201 claims, that the water is his, and that the water rents must be paid to him, instead of going into the coffers of the State. He hardly pretends that the millions that were expended on the works, through which Lake Michigan rolls down to Joliet, were altogether contributed by him. He generously leaves to the State undisturbed the ]*esponsibility and expense of re- pairing, maintaining, suiDerintending and operating the canal. For his own part he is content with the humble post of gob- bling up the accruing revenues. For the reasons, thus presented at a length which only the importance of the case could justify, we respectfully submit, that the judgment of the Appellate Court ought to be re- versed. G. D. A. Parks, E. F. Attorneys for Appellant. ( 1 ) Ix THE Supreme Court of Illixois, Xorthern Grand Division, September Term, A. D. 1881. 6203 MAi. Druley, Appellant, vs. "William Adam, Appellee. Appeal from Appellate Court of Second District. Additioxal Brief for Appellaxt. AVe think in our former brief that we have shown, both upon principle and authority, that a riparian proprietor on a nat- ural water course is entitled, and only entitled, to receive from the proprietor above the proper, natural and customary flow of the stream, unimpaired in quantity, and in the con- 1797 dition of fall necessary to make it reasonably useful to liimj but this rule applies only to the water naturally and custoru- arily flowing in the stream. It will, perhaps, in this con^ nection, be advisable for us to review more fully than we have the ( 2 ) authorities which were relied upon by counsel for appellees in 6204 the Appellate Court, and to consider some of the positions there assumed by them. I. Appellee in the Appellate Court made the proposition that *^a lower riparian proprietor has the right to the use of all water which may be added to a stream by a higher proprietor, no matter for what purpose, and it matters not that the addi- tion was made at the entire expense of the upper proprietor and withdrawn before reaching the land of the lower,” and in support thereof cited several authorities to which we desire briefly to call the attention of the Court. It seems to us that none of them are applicable to the point made in the case at bar. Tourtolotfe v. Phelps, 4th Gray, Mass., 370, turned entirely upon the construction of certain deeds of con- veyance, and the question in the case is expressly stated to be ^Ghe extent of the defendant’s right at his shop” under cer- tain deeds of conveyance introduced in evidence. The de- fendant in that case did not seek to assert nor claim the right to withdraw from the stream water he had added thereto, nor was that question in the case either directly or indirectly, nor has that Court in that case attempted to pass upon this question. The nearest approach in the opinion to the ques- tion urged by appellee will be found on page 376, and is as 6205 follows: ''One consideration is important to the present inquiry: It is this: That as each propfletor through whose land a water course passes has a right to the natural flow and descent of the water course subject to the like reasonable use by all others, he necessarily enjoys the (3) benefit of any improvement made by the proprietors above him. If they increase the head waters for useful pur- poses by flotving increased areas of land and by making reservoirs to preserve surplus waters for dry seasons, and thus increases the volume of water for hydraulic pur- poses, every lower proprietor necessarily enjoys the bene- fit of it; but in such case no mill owner below the first and nearest the meadow or land flowed can be liable to tiie 1798 Drulcif v. Adam, — Appt. 2nd Brief Sup. Ct.—Con. land owner for damages. He has done the land owner no wrong by having the increased volume of water at his works, whether he uses it or not; such increased volume of water was inevitable by him; he hadn^t caused it, and could not prevent it. He would not be responsible to the land owner for damages caused by flowing his land, be- cause it was not caused by his dam, but by some one above him, for whose doing he would not be responsible.’’ The improvements here spoken of are not those caused by an addition to the icaters of the stream from other sources, but simply consisted of the construction of reservoirs tvhere- by the surplus ivater was preserved for dry seasons. Of course the lower riparian proprietors necessarily enjoyed the benefit 6206 of the reservoirs constructed above to retain the waters for the seasons of drought. The upper proprietors could not, from the nature of the case, enjoy the benefits of their im- provements without conferring corresponding benefits on those below them. One of the questions in the case cited was as to the liability of the defendant for the overflow of a certain meadow land belonging to the plaintiff. It was held that the defendant was not liable, although he used the water thus held back and preserved by the dam, for the reason that it was not his dam that penned u]d and flowed back this water, but the dam of the upper proprietor. It was true that he de- (■i) rived a benefit from the construction of this dam and the preservation of the surplus waters; but he did not build the dam nor in any manner aided in its construction, and it was therefore held that he was not liable for the damages caused by this overflow. Upon the same principle it can be asserted that the appellant here is not liable, even if, as between ap- pellee and the state, appellee is entitled to the waters brought through the deep cut at the summit level, for it was not appellant’s dam that caused a. diversion of the water from the Hesplaines Elver into the canal, but it was the dam of the people of the State of Illinois, the owners of the canal ; and 6207 at the point where 'appellant drew this water from the canal the water was in the absolute and undisputed possession of the state and subject to the control of the Canal Commission- ers, and subject to that control, too, not by reason of any act or assent on behalf of the appellant, but by reason of an act of the Canal Commissioners, for which he was in no manner responsible. The next case cited by appellee in the Appellate Court in support of his claim to the water procured through the summit level from Lake Michigan was Webb v. FortlandAIanu- 1799 facturing Co., 3 Sumner, p. 189. There were but two ques- tions in that case, and I quote from the opinion of the court, page 191: ‘‘The first is whether to maintain the present suit it is essential for the plaintitf to show any actual damage. The second is whether in point of law a mill owner hav- ing a right to a certain portion of the water of a stream for use of his mill at a particular dam has a right to draw off the same or any less quantity of- the water at a con- siderable distance above the dam without the consent of the owners of other mills on the same dam.” It will be seen that neither ( 5 ) of these questions affects the question at issue, nor is the question at issue in any manner discussed in the opinion. It was held in that case that the defendant by drawing off the water, to which he claimed to be entitled, from the pond at 6208 some distance above the dam, necessarily decreased the amount of the head which the mill owners located at the dam would otherwise have, and to that extent they were injured, and for such injuries were entitled to maintain their bill. It was also claimed in that case that the defendants had fully indemnified the plaintiff from injury, and in fact conferred a benefit upon him by creating a reservoir higher up the stream so as to be capable of affording a full supply in the dryest seasons; but it was held that the plaintiff had no interest in such dam, could not compel its maintenance, nor could he be compelled to take any benefits that he might necessarily derive therefrom in lieu of his natural right to a full head of water at his dam. The third case relied upon is that of Swindon Water Works V. IF. S B. Canal Co., 14 Moaks, (Eng. E.), 86, but that case has not the remotest analogy in any respect to the case at bar. The Swindon Water Works Company claimed the right as upper proprietors of the stream to divert all the water for the purpose of supplying the town of Swindon, and by this means prevent any portion thereof finding its way to the lower proprietor, which the English House of Lords very properly held they had no right to do. 6209 The next case cited is that of Batavia Manufacturing Co. V. Newton, 91 111., 230. But no such question was before this Court in this case, nor did this Court even by way of argument say anything in that case that can be properly construed in support of such a proposition. The only com 1800 Dndeij v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. (6) tention between the parties was as stated by Mr. Justice Scliolfield (page 284) : ‘‘The plaintiff claims a preference of twelve hundred square inches, while the defendant contends that it is en- ' titled to but six hundred square inches. The ruling was in favor of the contention of the defendant.’^ And the settlement of this question depended entirely upon the construction of certain deeds of conveyance which had been introduced in evidence and formed a part of the record. By way of illustration, Justice Scliolfield uses the language relied upon by appellee, page 241 ; but the Court will see that the illustration is with reference to water that was sup- posed to have been added to the natural stream, had com- mingled therewith and had reached the joint possession of the riparian proprietors at their common dam, and simply asserts that such contribution was to the common pond, in which each were jointly interested, and that such fact would not entitle the person supplying the same to a peeference in ITS USE AT THE DAM; liut eveii tJuit questiou was not before the court in that case, much less can it be claimed that this 6210 illustration supports the claim made that if an upper riparian proprietor has added to the natural waters of a stream by artificial means and for his own purposes, he has no right, for his own use, to withdraw the same or a like quantity from the stream before it reaches the possession af the lower pro- prietor. The next is that of Eddy v. Simpson, 3 Cal., 249, and comes nearer than any other case cited in support of the proposition contended for, but still, when carefully considered, falls far short, and unfortunately for the appellee has been expressly held by later cases in the same court not to bear the con- struction sought to be placed upon it, and if ca- (7) pable of bearing such construction, has been expressly over- ruled by the cases heretofore cited by us. In that case it was held that the water which it was sought to withdraw from the stream had, without the agency of the defendants found it way into Shady Creek, joining the waters then in the pos- session of the plaintiffs, and became a part of the body of water used and possessed by the plaintiffs, that the defend- ants had abandoned the water and lost all right therein, and therefore had no right, after it had come into the possession of the plaintiffs, to withdraw the same from the plaintiffs’ possession. It seems to us that if it was true, as found in the case last cited, that the waters had been abandoned by the de- 1801 6211 fendant and allowed without his agency to flow into the pos- session of the plaintitfs, that the defendant would have no right, either natural or legal, to withdraw the same from the possession of the plaintiff. And this concession in no man- ner militates against the claim made by us. Here the water was withdrawn by the party who supihied the same before it came into the possession of the plaintiff. What he coni- plains of, is that the water ivas not permitted to come into his possession. It was claimed by counsel for appellee in the Appellate Court, and will undoubtedly be insisted upon here, that the California cases are not of a general applicability for the rea- son that they are, as it is claimed, founded on the situation of the parties and the customs and laws of California. From the peculiar situation of many of the water rights in Cali- fornia, the precise question at issue has arisen more fre quently in that state than in all other localities combined; but the Supreme Court of California distinctly assert that they base their opinion upon common law principles, applying to the ( 8 ) peculiar condition of things in California well established rules of the common law. At common law a person in order to be entitled to the use of water in a running stream must be a riparian proprietor; that is, he must own the soil upon either one or both of the banks of the stream, and unless he was 6212 such owner he had no right to claim any interest in the use of the water, unless such interest had been acquired by gra;it or prescription. In California, however, in most instances the fee to the streams at the time this question arose was in the Government. Strictly speaking, there were no riparian pro- prietors except the Government, but from the earliest settle- ment of the state the person who, for the purpose of operat- ing mines, or for irrigation, first dammed up and controlled the waters of a stream was treated and considered as having a proprietary interest in the use of such water as against all persons other than the Govermdnt, or those claliming under the Government. The development of the mines of California required the protection of parties who had expend- ed large sums of money and a large amount of labor in con- trolling for useful purposes the waters of a running stream. And so the courts, applying common law principles to the existing state of facts, say that they will treat the first ap- propriator of the waters of a running stream, in all cases where the Government is the proprietor, as the person entitled to the use of such waters; and this, too, notwithstanding he may have no interest in the soil over or through which 1802 Druley v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. the stream runs. Such ruling, was a proper application of well established rules of justice to the state of facts there found to exist. Such being the case, and the first appropri- 6213 ator of the waters of a running stream being treated and considered as the true owner thereof, so far as the use of ( 9 ) such waters was concerned, the question in the case cited by us from California arose, and as the Supreme Court of California say, by the application of common law principles they find that a person who has added to the waters of a stream may draw from such waters a like amount. The only departure from strict common law principles being in treating the first appropriator of the waters of a stream as the true riparian owner as against all persons except the Government and those claiming by grant from the Government, such per- sons so treated as the true owners being entitled to the same rights to be determined in the same manner as persons who are riparian proprietors at common law. II. We desire also to call the particular attention of the court to the facts appearing in several of the cases referred to in our former brief; but, before doing so, will state as a propo- sition which we think is fully sustained by' the authorities, that in no case is a party liable to a lower land owner for diverting water if actual damage has not been done. 6214 Wadsiuortli v. Tillotson, 15 Conn., 366. Gillet V. Johnson, 30 Conn., 180. Seeley v. Brush, 35 Conn., 419. Chat field v. Wilson, 31 Vt., 358. Gerish v. New Market Mfg. Co., 30 N. H., 478-483. Pollitt V, Long, 58 Barber, 20. Billing v. Murray, 6 Ind., 324. Williams v. Mooreland, 2 Barn. & C., 910. Mason v. Hill, 3 Barn. & Add., 304. Mason v. Hill, 5 Barn. & Add., 1. Emhry v. Owen, 6 Ex., 358. Wood V. V/add, 3 Ex., 748-781. 3 Kent Com., 441, note 1, 12th Ed. ( 10 ) Of course this rule does not apply if there has been such a diversion of the water as would, if presisted in for twenty years, grow into a prescriptive right to the use of the water thus diverted, to the prejudice of the lower proprietor, for in such case the law implies damage, though none be shown. We do not contend that a lower riparian proprietor is bound. 1803 in order to be protected in his rights, to be in the actual use of the water power. The doctrine seems to be well establish- ed that an improper or unreasonable diversion of the natukal waters of a stream works an injury to the lower proprietor,, even if he is not in a condition at the time of such diversion 6215 to apply the water to his own use, for the reason that such diversion, if continued in for a period of twenty years, may result in a prescriptive right to his prejudice. But this rule only applies to the natukal waters of the stream, and it only applies in cases where the diversion is an unreasonable one. This doctrine seems to be conclusively settled by Chief Justice Shaw, in Elliott v. Fitchburg R. R. Co., 10 Cush., 191. In that case one Clark was an upper, and Elliott, the plain- tiff, a lower riparian proprietor upon a stream. Clark had deeded to the railroad company a perpetual right and priv- ilege to make and maintain a dam and reservoir on this stream, and to draw and use the water therefrom. In pursu- ance of the right thus conveyed the railroad company had erected a dam across the stream below a spring on Clark’s land, and by such dam had made a reservoir and inserted a pipe therein, from which they took the water from the res- ervoir for the purpose of supplying their depot at Sherly, and used the same in supplying their locomotives, and for other similar purposes. The defendants proved that Clark’s meadow, through which the creek run, was wet and si:>ringy, and that ( 11 ) he had cut ditches across the meadow to the brook, thereby in- creasing the fioiv of water to the brook; and it was further proved that there is no outlet for the tvater of said meadoiv except into this brook, and that the meadow was situated 6216 below the dam. Page 102. ''The plaintiff contended that if the jury were satisfied of the existence of the brook as alleged, and the diversion of the water therefrom by the defendants, he was en- titled to a verdict for nominal damages without proof of actual damage ; but the presiding judge instructed the jury that unless the plaintiff suffered actual damage in consequence of the diversion, the de- fendants were not liable in this action. In connection ivith this instruction the judge further instructed the jury that if they believed that the defendants by excavating said reservoir and spring^ above the dam, or that said Clark by digging said ditches had increased the flow of ivater in said brook equal to the quantity of water the defendants had diverted therefrom, then the defendants 1804 Druleif v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. were not liable in this aetion. The whole court are of opinion that this direction was right in both particulars.” It has been suggested by counsel for appellee that this case was determined upon the peculiar statutes of the State of Massachusetts in relation to mill rights. In this counsel are in error. The court say, after having considered the ques- tion raised upon the first direction to the jury, (that is, that the plaintiff must show an actual damage in order to be en- titled to recover) : ‘‘We consider the other direction correct also, as we un- 6217 derstand it. The question wms not (if the defendants have caused damage to the plaintiff amounting in law to a disturbance of his right, for which an action would lie) whether it would be barred by an advantage of equal value conferred in the nature of a set-off, hut ivhether the ( 12 ) improvements of Clark upon his meadow taken together as a whole, including the dam and ditches as parts of one and the same improvement, any damage was done to the plaintiff ; and this we think ivas correctly so left. “It may, perhaps, be proper to guard against miscon- struction in considering what are the general rights and duties of persons owning lands bounding on running streams by the general rules of law and for general pur- poses, that some alterations of these rules may be effected in Massachusetts by the acts of legislation on that sub- ject in respect to mills, and the constructions which have been judicially put upon such legislative acts. * * * It is not necessary, however, to go into this subject, but merely to say that the rights to streams of running water upon which the present question turns are not dependent upon or. affected by the mill acts.” It was insisted by the counsel for appellee in the Appellate Court that the case of Whittier v. Cocheco Mfg. Co., 9 N. H., 454, was not in point, for the reason as contended that the manner of the enjoyment of the water by the defendants 6218 was consistent with the manner in which they had used the same for fifty years, and that they were not obliged to pen it back for plaintiff’s benefit. The case will be better under- stood by the following diagram? (13) The Cocheco Eiver runs, as we understand the case, in an easterly direction from its source to its mouth. At the point designated "Waldron’s Falls there was a dam, and on the northerly side of the river the defendants and their grantors 1805 had, for a period of fifty years, been in the enjoyment of a certain waterpower privilege. On the southerly side of the river the plaintiff, by virtue of the conveyance to him, be- came seized of a water power privilege, under which he was entitled to a portion of the water formed in the mill-pond above the dam that furnishes the. water power under which the defendants claimed. Under these circumstances the de- fendants, to increase the flow of water to their water priv- ilege, had constructed a reservoir at Bow pond, some dis- tance above the dam, at Waldron’s Falls, and in this res- ervoir the water was dammed back and kept for use during a season of low water. Subsequent to the time that the 6219 plaintiff acquired his water power privilege at the south- ern end of the dam, and subsequent to the construction of the reservoir by the defendants at Bow pond, on the northerly side of the river, the defendants iiurchased certain cotton mills at a point about three miles lower down the river, at which point they constructed another dam for the purpose of supplying their cotton factory with water ])ower, and during low stages of water opened their gates at the dam at Waldron’s Falls and allowed the water, which they had penned back in the reservoir at Bow pond, to flow past the dam at Waldron’s Falls to the dam at their cotton factory and use the water at the latter point. The action was commenced in 1831. It appeared from the evidence, first, that the defendants and their grantors had for more than fifty years used a portion of the water of the Cocheco River (14) at Waldron’s Falls at the northerly side of the dam. It further appeared that in February, 1819, tw^elve years before the action was commenced, the plaintiff’s grantors became seized of a certain mill privilege at the south end of the dam. It further appeared that the reservoir at Bovr pond was constructed in 1825, six years after plaintiffs’ grantors had become seized of the water power privilege at the south end of the dam at Waldron’s Falls; and at this time the defend- ants and their grantors used the water power privilege which they were entitled to at the northerly end of the dam at Waldron’s Falls, so that the reservoir, which supplied the 6220 additional water power in seasons of drought, was construct- ed after the rights of the plaintiff had accrued, and the at- tempt to use the water thus dammed back at the cotton fac- tory, three miles below Waldron’s Falls, was not made until long after the plaintiff or his grantors had acquired their water power privilege. The court held that the defendants had a right to open their gates at Waldron’s Falls and to allow the water to which they were entitled, and the water 1806 Dniley v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. which they had supplied to the stream by means of the res- ervoir at Bow pond, to flow down past the dam at Waldron’s Falls to their cotton factory three miles below; provided, of course, that they use no greater quantity than they would have used but for such change in the location of the place where the same was used. We can do no better, upon this subject, than to quote from the opinion of the court, page 458: '‘The next question rises upon the instruction to the jury, that the defendants might draw through their gates in dry seasons even a larger quantity than they had been accustomed to draw prior to 1828, if the excess was fur- nished hy themselves hy means of a reservoir they had constructed above."’ The court will see that, as the action was commenced in (15) 1831, no right by prescription existed to this excess of water. It depended entirely upon the legal right of the defendants 6221 to use water which they themselves had provided, and hy their own means had added to the waters of the stream. On page 459 the court continues: “This part of the case depends upon some special cir- cumstances, probably not often existing. The defendants appear to have provided a supply of water at Bow pond, the outlet of which empties into the Cocheco Eiver, for the use of their factories in time of drought. There is no complaint that in making provision for this supply they have infringed any rights; if there was, it could not be tried in this case. In order to use this water at their fac- tories in Dover it must pass Waldron’s Falls, and the question is whether the defendants are obliged to shut their gates at that place so that the plaintiff may have the use of the additional water thus provided as it passes those falls, or to use it in part themselves there in order that the plaintiff may use it with them, or whether they may suiter their gates to stand open, and this additional water to pass icithout use by any one. On the case before us, the plaintiff has no right to have this water pass Waldron’s Falls. The defendants may pen it back and permit it to evaporate without suffering it to come into the Cocheco River. It is derived from a reservoir pro- vided hy them for their own purposes, and the plaintiff can maintain no action for depriving him of the use of 6222 it in that mode. On what principle, then, is his right infringed if they let the water into the river, hoisting their gates at Waldron’s Falls and permitting it to pass hy? On what ground are they obliged to pen it up there for the plaintiff’s heneflt. Suppose, instead of a mill the 1807 plaintiff was the owner of a meadow lyin^? upon the Cocli- eco above Waldron’s Falls, which in or- (16) dinary stages of water, in the summer, prior to the con- struction of the reservoir at Bow pond, had not been affected by the water, and that if the defendants were now to let the water out of the reservoir in the summer and pen it up by the dam at Waldron’s Fall until they had occasion to use it for their works there, the plaintiff’s meadow would be overflowed thereby and injured, he would most clearly have a right to complain of that, and his complaint would be in substance that the defendants did not open their gates and let the water pass, but by means of their dam they threw the water back upon his land. This may serve to show that he cannot object to the act of the defendants in drawing the water through their gates, unless he can show a right to the use of it and a duty upon the part of the defendants not to deprive him of that use. As the owner of a mill site on the river, he u'ould have been entitled to the use of it from the mere fact that it run in the channel, had hot the defend- ants PROVIDED IT AND TURNED IT INTO THE RIVER FOR THEIR 6223 OWN USE.” And, again, page 461 : ‘‘We have considered this case as if Whitson & Son (the plaintiff’s grantors), when they conveyed in 1819, could grant the right to use the southerly end of the dam all the water ordinarily running in the stream lieyond the quan- tity which the defendants and those under whom they claim had been accustomed to use on the northerly side.” So the court will see that this case is directly in point and fully sustains the claim we make. It did not turn upon the fact that the defendants had by use acquired a right to the water in the stream to the exclusion of the plamtiff, but the plaintiff was treated as being entitled to a portion of the (17) water running in the stream for his mill site at the southerly end of the dam at Waldron’s Falls, and it is expressly held that he has no right to complain of diversion of water from this stream, and a refusal to permit it to pass over the dam at Waldron’s Falls in case such water has been supplied byJhe defendants. The case of Society for Manufacturing v. Morris Canal Co., Saxton (N. J. CTi.), 157, is so nearly identical in all particulars with the case at bar that we feel justified in quoting there- from more fully than in our former brief. We desire here 1808 Dniley v. Adam, — Appf. 2nd Brief Slip. Ct. — Con. to say there is nothing in that case, as claimed by appellee ^s counsel in Ajopellate Court, from which it can be inferred 6224 that the Canal Company used the Rockaway as a part of their canal the whole distance from the points at which the waters of Lake Hopatcnng and Green pond were brought into the Rockaway to the point where the same was withdrawn for canal purposes. As these points were necessarily dis- tant from each other, the prohahilities are that the water froni either one or the other, or perhaps both of these sources, was introduced into the Rockaway at a point where the Rock- away itself was iiot used as a part of the canal, but we appre- hend on principle it can make no difference how this fact is, the important inquiry is, were such ivaters introduced by the SAME PEKSox 7rho, for his own purposes {at a point ivhere he had control of the stream) ivithdrew the same; and if so, had' such person the right to withdraw from the stream as much as he had added thereto? The chancellor says, p. 188: ‘A now propose to consider the right of the defendants, or how far, if at all, they interfere with those of the com- plainants; and wdiether, in the exercise of those rights any injury has been done to the (18) plaintiffs, and whether, in the further use of them, the plaintiffs will be so certainly and permanently injured as to justify the interference of the court at this time by in- junction. 6225 ‘‘And first as to the rights claimed by the defendants; I do not understand them as claiming a right to the ad libitum or unrestrained use of the water of the Passaic or its tributaries, subject to the payment of a compen- sation or damages to the society for establishing useful manufactures. * * * “They claim, under the act of incorporation, the right to construct a navigable canal from the Delaware to the Passaic; they dlaim the use of the waters of Lake Hopat- cung and of the extra water of Green pond; they claim to bring the water from the Hopatcung into the Rockaway to make use of that river as part of the canal, and to take out of it again water for the use of the canal — not THEREBY DIMINISHING THE ORDINARY AND NATURAE FLOVv^ OE THE WATER AT THE GREAT FADES OF PATERSON. “It does not follow that because a person as riparian proprietor has a right to the flow of a stream and to its use for the purpose of manufacturing or any other pur- pose requiring the use of water, that therefore no other 1809 proprietor or person shall be at liberty to use, for the same or like objects, the water above him. This would be con- trary to natural justice and the reason of things. Each one has a right to the use, provided that in the exercise of such right he does no injury to his neighbor. ?. Blac. Com., 403. 6226 ‘‘Now if the Morris Canal and Banking Company make such use of the waters of the Passaic, or any of its trib- utaries, as to occasion no diminution in the fioiv of the stream at the place (19) where it is used by the complainants ; and if in such use no injury ivhatever is done to the complainants , are they not exercising an ordinary and well established right? Does not the same privilege that is accorded to others also belong to them? It appears to me unquestionable that the defendants have such right as against the com- plainants, subject to the condition already stated. “But the Morris Canal Company claim the further priv- ilege of introducing into the Eockaway the waters of the Lake Hopatcung, and of one of the branches of the Ear- itan, and. then of taking out of the Eockaway below so much water as may be necessary for the purposes of their canal; averring that the waters of the stream ivill be thereby in no wise diminished. “The water thus taken out, it is admitted, is not to be returned until it shall have passed the great falls at Pat- erson. They say that the supply of water thus brought in, together with the extra supply which they are author- ized to take from Green pond, will in times of drought afford the society a more copious floiv than they would otherwise have, and therefore that it will be a benefit. On the other hand it is contended by the society that the 6227 Canal Company have no authority thus to commingle dif- ferent streams and different rights; that they are en- titled to the flow of the identical stream of water, not only without diminution but without alteration ; that if the claims of the company in this behalf are sustained, the supply afforded by these substituted streams may in time diminish, and the property and immunities of the com- pany be jeoparded or ruined. “This is supposed to present a question of novelty and importance. It certainly is not the case of a simple diver- sion ( 20 ) of the stream for necessary purposes, returning it again to its natural channel when those purposes shall have been 1810 Druley v. Adam, — Appi. 2nd Brief Sup. Ct.~~Con. answered; but would seem to be rather a substitution of part of one stream for part of another. The principle that assigns to everything capable of ownership a legal and determinate owner, is wise and salutary and productive of great ends of civil society. This principle, however, can only be applied to streams of water in a limited sense. There is no such thing as actual property in running water. It is transient in its nature and must be permitted to flow for the common benefit. The interest is rather of a usufruct ory kind, but not the less absolute or vested on that account. “To say, then, that a person entitled to the flow of a 6228 stream through his land, is entitled to the flow of the very identical substance that issued from the original source, is an assertion of right not easily sustained. It would he tantamount to the ownership of the particidar ivater itself, ndiieh cannot he. I do not understand Lord Ellenborough, in Bealy v. Shaw, to carry the doctrine thus far. His principle is, that every man has a right to the advantage of a flow of water in his own land, without having its quantity di- minished, or its QUALITY altered hy the operations of those u'ho might he above him on the same stream. It it not pretended that the quality of the water to be let in from Lake Hopatcung and other sources is in any way ditferent from the water of the Eockaway. If then the DEFENDANTS TAKE FKOM THE RoCKAWAY NO GKEATER QUAN- TITY OF WATER THAN THEY BRING IN, (and they claiiii a right to do no more,) will not the society enjoy their privi- lege WITHOUT DIMINUTION OR ALTERATION, OR CAN THEY IN ANY WAY BE INJURED!” ( 21 ) This case, as the court will see, was decided upon the exact principle we contend for. It did not turn upon the fact that the Eockaway was used as a part of the canal the entire distance from the point where the water was introduced to the point where it wuis withdrawn. Indeed, there is nothing in the case to indicate that the hed of the stream was used as a canal at all, but the indications are that the sense in which 6229 the court speaks of the claim made by the.Canal Company to the use of that stream as a part of the canal, is its use as a feeder, for in reading the statement of the case and the ex- tended and able argument of the counsel, it will be found that it is nowhere stated that the bed of the stream was used as a part of the hed of the canal. On the contrary, Mr. Wood, of counsel for the Society, claimed, p. 167, that the Canal Com- pany could have accomplished their purposes and avoided all trouble hy passing the water from Lake Hopatcung and 1811 other sources over the Rockaivay in an aqueduct, and this claim seems to have been acquiesced in l)y all the counsel on both sides. The California cases already referred to establish the right of the Canal Commissioners to the surplus water turned into the Desplaines from Lake Michigan as clearly and conclusively as it is possible for that right to be es- tablished by the uniform decisions of any one court. The opinions of this court have always ranked high with the profession, and one of them was rendered l)y Mr. Justice Field, now of the Supreme Court of the United States, whose reputation as a learned jurist is second to none, and it would seem upon principle that as a riparian proprietor is only entitled to the water that naturally runs in the stream, that he has no right to complain if an upper pro])rietor takes 6230 from the stream a like or less quantity than that which he has added thereto. ( 22 ) The same question has been since rei)eatedly reaffirmed l)y the Supreme Court of California. II I. The State of Illinois l)y making the deep cut at the summit level has caused the waters of Lake Michigan to flow directly through that deep cut into the canal. This water, as the act shows, was brought from Lake Michigan in pursuance of the original plan for the construction of the canal, and one of such purposes always has been to sup])ly water for man- ufacturing purposes in case a surplus of water is found in the canal for that purpose; and all of the acts of the Legisla- lature recognize this fact and impose upon the Canal Com- missioners, and have for all time, the duty of realizing as large a revenue as possible from this source for the purpose of keeping up and maintaining the canal. This water from Lake Michigan is turned into the canal and into the Des- plaines River by artificial means, and is, at least until it ar- rives at Lockport, an artificial water course, entirely within the control of the Canal Commissioners, subject to be by them diverted in such a manner as the law may authorize, or as they shall deem best for the interests of the State, and for such diversion, no matter whether made for the purposes of 6231 supplying the canal with water or for the purpose of fur- nishing power for manufacturing purposes, the appellee has no right to complain, and would have no such right if the Canal Commissioners should by an artificial channel receive the water at the place where it is discharged through the Norton mill-race, and conduct the same in an artificial chan- 1812 Druley v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. nel to the canal, or to the point where the river and canal are nnited. (23) We don’t understand that appellee’s counsel insist that in such case they would have any right to complain. In other words, they concede the right of the Canal Commissioners to divert this surplus water from Lake Michigan at any point BEFOEE it reaches the Desplaines Kiver, but insist that it can- not be diverted after it has reached the bed of that stream. We can see no difference in principle between the diversion before and a diversion after the waters have reached the Des- plaines Elver, provided always this diversion is made be- fore the artificial waters thus commingled with the natural waters of the stream came into possession of appellee. This artificial water is added to the stream, not for the benefit of appellee, but for the benefit of the canal and for canal pur- poses. They were withdrawn from the stream by the same party that supplied the same and for legitimate purpose. It has even been held that the right of prescription cannot be asserted in favor of the use of such water, but that the 5232 original proprietor may alter the course at any time to suit his pleasure, even after a period of twenty years. Greatrex v. Hayward, 8th Exc. (W. H. & G.), p. 292. Wood V. Waud, 3 Exc., 748. Washburn on Easements, X, p. 294-6. Arkwright v. Gillj 5 Mees. & W., 203. Greatrex v. Hayward, 8 Exc. (W. H. & G.), p. 290. Wood V. Waud, 3 Exch., 748. Angell on Water Courses (6 Ed.), Sec. 206. But the uper proprietor may acquire an easement to the flow of an artificial stream over the lands of a lower pro- prietor, and this, too, although the lower proprietors has no right to demand that the artificial water course should be maintained. ’ Angell on Water Courses, (6 Ed.), 206 A. (24) Rawstron v. Taylor, 11 Exch., 378. Broadbent v. Ramsbotham, id., 610. Solomon v. Vintner Co., 4 H. & N., 593. Sampson v. Hoddinott, 1 C. B. X. S., 590, 606. In such case the upper proprietor would not he liable for a diversion of the water formerly running in the artificial water course. Rawstron v. Taylor, supra, which is a leading and import- ant case on this subject. 6233 Counsel for appellee in the Appellate Court seemed to rely upon the case of Wood- v. Waud, 3 Exch., 748, as establish- ing their right to the water added to the Desx)]aiiies River from Lake Michigan through the deep cut in the canal. This book is not to be found in the library, but a full re- port of the case will he found in Washburne on Easements and Servitudes (2d Ed.), p. 370, star, p. 297, from which we cite as follows: ‘Mn Wood V. Waucl, 3 Exch., 748, the plaintiff and de- fendant each had mills u})on a small natural stream. A part of the supply of water for these was derived from two different mines, from one of which a stream had flowed for sixty years by means of an artificial outlet dug by the owner of the mine for the purpose of drain- ing his mine. From the other mine a stream of water flowed which was caused by pumping. These streams flowed through separate soughs into the natural stream, One of these passed underground through the defendant’s land before reaching the plaintiff’s land, and then through that into the stream. The other did not pass through the plaintiff’s land at all before reaching and discharging itself into the stream. The action of the plaintiff was for diverting, or impro- ( 25 ) perly interfering, by the defendant, with the enjoyment by the plaintiff of water flowing from these soughs. AVliatever he did in this resyiect was done upon his own 6234 land, before they had entered and united with the waters of the natural stream, and before the water of the sough that run through the plaintiff’s land had reached the lat- ter. The court held that if the mine owner had seen fit to stop the supply of water, or divert it, so that the water from the mines should no longer roach the works of the mill owners, he would not have been liable therefor, adopt- ing the doctrine of Arkn'right v. Gdl. As between the plaintiff and defendant no prescription had been set up or relied on on either side, neither had any right to com- plain of any use which the other should make of the water on his own land, before it reached that of the other, pro- vided he did not foul it or turn it into the stream heated so as to injure the party below. ‘Each,’ in the language of the court, ‘may take and use what passes through his land, and the proprietor below has no right to any part of that water until it has reached his own land. He has no right to compel the owners above to permit the water to flow through their land for his benefit, and conse- quently has no right to action if they refuse to do so. * * * If they polluted the water so as to be injurious to the tenant below the case would be different.’ But as soon as the water from either of these soughs had be- 18] 4 Drulei/ v. Adam, — Appt. 2]id Brief Sup. Ct. — Con. come united with that of the natural stream in its nat- 6235 ural water course it partook of the character and inci- dents of a natural stream. Pollock, C. B., in giving the opinion of the court in the above case, gives, as an illus- tration of the doctrine which he sustains, the case of a drain made through a man’s land for agricultural pur- poses, which (26) had continued for twenty years, whereby the water from his own land was discharged upon that of another. This would not give a right to the latter to insist upon its continuance and thereby to preclude the land owner from altering the level of his drain for the greater improve- ment of the land. The state of the circumstances in such cases shows that one party never intended to give nor the other to enjoy the use of the stream as a matter of right.” ‘‘The above makes this important distinction between the right of the lower riparian proprietor to water flow- ing in a natural stream and to that created and flowing in an artificial one for a temporary purpose, that in the former case an action will lie for its diversion by an up- per proprietor, although done on his own land, whereas in the latter case no action will lie for the diversion of the water unless the same shall have reached and become part of a natural stream.” From this it will be seen that the question at issue was not 6236 presented in that case, and so far as it goes it is an author- ity in our favor. It establishes conclusively our right at least on our own land, to divert the waters of our artificial water course. But the artificial waters considered in this case were not contributed by either Wood or Waud, but by another, mho was not a partg to that suit. So that while it may be true that as between Wood and Waud neither would have had the right to withdraw from a natural stream water, or a like quantity of water, that had been added thereto by another, this case does not decide that if either had added artificially to the waters of a stream that he might not, on his own prem- ises, withdraw a like quantity. If, in that case, artificial water had been added to the nat- (27) ural stream by means of an artificial channel by the defend- ant for his own purposes, and for his own use withdrawn from the natural stream before it reached the possession of the plaintiff, and, if, under such circumstances, the court had held that he had no right so to do, the case might support 1815 tile position assumed by appellee; but as it is it falls far short of so doing. The most that can be claimed on the strength of that case is that the defendant would not have the right of withdrawing, to the prejudice of the ])laintiff, 6237 water that had been supplied to the natural stream by a stranger to him, neither at his request nor through his agency; that is, the stranger who thus added to the waters of the stream by artificial means, not seeking to withdraw it for its own use, had abandoned it for the use of the sev- eral riparian proprietors, and for that reason the several riparian proprietors were interested therein to the same ex- tent as if supplied from natural sources, the stranger, how- ever, being at liberty to divert the artificial stream at any time. It was his water, and he had a right to permit it to flow into the natural stream, or elsewhere, as he saw fit. IV. Appellee claimed in the court below that no water had been added to the Kiver Desplaines by apiiellant or those from whom he claims; that the water which was added was by vir- tue of the improvement of the summit division of the canal ; that the purpose of this improvement was not to supply water to the canal, etc.; and in support of the position thus assumed, counsel cited a portion and a portion only of the ])reamble of the Act of 1865, under which the deep cut was made. (28) The portion cited read as follows, viz.: “Whereas, it has been represented that the City of Chicago, in order to purify 6238 or cleanse Chicago River by draining a sufficient quantity of water from Lake Michigan directly through it and through the summit division of the Illinois and Michigan Canal, would advance a sufficient sum of money to accomplish this desir- able object.” Here ends the quotation, and counsel in com- menting on it say this showed the object of the act to be to purify the Chicago River and to accomplish this end water was to be drawn through the summit division of the canal. It is evident the Appellate Court did not read the act or the preamble thereto, but took it for granted the quotation was the whole of the preamble, and hence was led into error as to the true object of the passage of that act. If the sole object of making the deep cut was to drain Chicago River, there would be some force in the position taken; but even then, if the water was resumed before it passed to the point where appellee was entitled to use the same, no action would lie therefor. But it is hardly neces- sary to discuss that question, as a perusal of the whole pre- amble and the act itself shows that the object of making this 1816 Druley v. Adam, — Appt, 2nd Brief Sup. Ct. — Con. deep cut was to supply the canal itself ivith water from Lake Michigan. The whole preamble is as follows: ^‘Whereas, it has been represented that the City of Chicago, in order to purify or cleanse Chicago Eiver by 6239 drawing a sufficient quantity of water from Lake Michi- gan directly through it and through the summit division of the Illinois and Michigan Canal, would advance a suf- ficient amount of funds to accomplish this desirable ob- ject; and w'hereas, the original plan of said canal was to cut down the summit so as to draw a supply of ivater (29) for navigation directly from Lake Michigan, ivhich plan was abandoned , for the time being, after a large part of the u'ork had been executed, o^mv in consequence of the inability of the state to procure funds for its further prosecution; and whereas, under the law creating the trust, the plan of the summit division of the canal was changed, the level being raised so as to require the prin- cipal supply of water to be obtained through the Calu- met feeder, subject to serious contingencies, and by pumping onto the summit with hydraulic works at Bridgeport; now, therefore. Be it enacted. Sc. Sec. L That to secure the comple- tion of the summit division of the Illinois and Michigan Canal upon the original deep cut plan, &c. Sec. 2. The canal shall be constructed on the plan adopted by the Canal Commissioners in 1836. Sec. 3. Provides for right of way. Sec. 4. The amount expended (not exceeding the sum of $2,500,000 and interest) in deepening summit division on the plan adopted by the Canal Commissioners in 1836 shall be a lien upon the canal and its revenues. 6240 Sec. 5. The State may at any time relieve this lien by refunding to the city the amount expended. The title to this act, as well as the preamble and the act itself, is wmrthy of consideration, and shows what the object of the act was, viz. : An act to provide for the completion of the Illinois and Michigan Canal upon the plan adopted by the State ml836.’’' In 1871, shortly after the great fire in Chicago (see Ses- sion Laws, 1871-2, p. 170), the General Assembly, under pro- visions of Section 5 of the Act of 1865, refunded this money to the City of Chicago and discharged this lien. (30) So it will be seen that the primary object for deepening the summit division was obtaining a supply of water for the 1817 canal, directly from Lake Michigan. To complete the canal ON THE ORIGINAL DEEP CUT PLAN_, adopted in 1836, the second- ary object was to furnish drainage to Chicago. To accom- plish the primary object the City of Chicago was authorized to complete the canal on the original deep cut plan, and was given a lien on the canal and its resources for its repayment. The drainage of Chicago was a mere incident, a secondary consideration. In this connection and for the purpose of showing more conclusively what was intended by the Act of 1865, author- izing the deep cut on the summit level, it may be of 6241 interest to examine the Act of 1836, providing for the con- struction of the Illinois and Michigan Canal. (Vide Sess. Laws., 1836, p. 145.) We quote from Sec. 16 of that act as follows: ‘^The said canal shall not be less than forty-five feet wide at the surface, thirty feet at the base and of suf- ficient depth to insure a navigation of at least four feet, to be suitable for ordinary canal lioat navigation, to be SUPPLIED WITH water FROM I.AKE MICHIGAN and SUCll other sources as the Canal Commissioners may think proper, &c.’’ To be supplied with water from Lake ^Michigan for what purpose? For navigation simply! ISTo, for all purposes; and one of the purposes always contemplated in making such improvements is the supplying of water power when practi- cable, and thereby aid, from the revenue thus derived, in maintaining, at the least possible expense to the public, these desirable enterprises. (31) V. We desire to consider briefly the opinion of Mr. Justice Pillsbury, of the Appellate Court, as we presume that opin- ion will, to some extent, be the liasis of the argument that may be made in this court on behalf of appellee. Justice Pillsbury says (page 11 of abstract) that: 6242 ‘Mn construing contracts courts will examine their provisions in the light of the circumstances surround- ing the parties, and the subject matter when made.” This is undoubtedly true, and is supported by the authori- ties cited by us on page 49 of our former brief. To use the language adopted by Mr. Justice Caton in Hodden v. Shentz, 15 111., at page 582 : ^‘The law must give a common sense construction to grants, and consider the state of things, and the consid- eration in view of the parties at the time the grant is made which move them to its execution and acceptance.” 1818 Dndey v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. It becomes, then, for the proper application of this rule, necessary to inquire what the considerations are that were in view of the parties at the time the Havens’ release was executed. It is a part of the conceded facts in this case that the Illinois and Michigan Canal was completed and opened for navigation in the spring of the year 1848. (See page 3 of abstract.) So that prior to that time there had been no diversion of the wmters of the Desplaines River by the canal authorities. That diversion did not commence until the 20th day of April, 1848. Canal Trustees v. Haven, 5th Gilm., p. 554. So that of course up to that time there can be no claim or pretense that any water was allowed to spill from 6243 the summit (32) level into the Desplaines River at Lockport. The cases of Haven v. The Canal Trustees, decided in the 5th of Gilman, was brought to the October Term of the Circuit Court of AVill county for the year 1848, and was tried upon an agreed state of facts fully appearing in the opinion, from which, among other things, it appeared (Canal T)iistees v. Haven, supra, p. 554) that “on the 20th day of April, 1848, the defendants (Canal Trustees) diverted, or caused to be diverted, into the canal for the use of said canal, from the natural chan- nel of the river, the whole or tlie x)rincipal part of the waters of said river by turning the same from the basin in said river by means of a dam on Section 9, being a canal section, and about half a mile above the dam of said plaintiffs, so that the plaintiffs are wholly deprived of the use of the water at their said mills, and have not since been able to run their machinery. From the time of putting this portion of the canal under contract in 1838. and up to the year 1843, there had l)een no change in the original plan of supplying the canal with water from Lake Michigan hy the deep cut as originally contem- plated, and all contracts let previous to 1843, and all the arrangements of said canal, were made notoriously upon the plan aforesaid, and with a view to supply the canal from Lake Michigan.’' 6244 In that case the Supreme Court decided that Section 16 was not included in the lands reserved from sale and granted to the State by the Act of 1822; so that the provision of the Legislature reserving a right of way for the canal, did not apply to Section 16. and on the state of facts ])resented in that case this court held that the Havens were ri])arian pro- prietors upon one side of the stream, and as such were en- titled to the use of one-half of the natural how of the stream. (]i. 558.) This same case was again taken to tlie 1819 (33) Supreme Court of this State upon the assessment of dam- ages, and is reported in the 11th 111., 554, and the judgment for damages reversed for the reason that they were excessive and that the amount wliich the Havens were entitled to re- cover, as the case then stood, was merely nominal. The Havens’ contract, or lease, which is set forth in this record, was a settlement of this suit, and the })reamble to the con- tract shows that it was intended as a settlement of the mat- ters in controversy in that suit and for damages to the Havens occasioned by diverting the waters of said river from their mill and applying it to the use of the Illinois and Michigan Canal al)ove said mill. When we take into consid- eration the agreed state of facts in the case reported in the 5th Gilman and the reference that is there made to the aban- donment of the project for supplying the canal with water from Lake Michigan, and the further consideration that the Havens were then complaining that the canal was not thus 6245 supplied with water, but that on the contrary the trustees were using the natural water of the Desplaines River for that purpose, and the further consideration that this suit was In’ought immediately after the opening of the canal, it is evident that the subject matter of that contract was the natural water of the Desplaines River, and not water that was then or that might any time thereafter he added thereto • from Lake Michigan. Justice Pillsbury says in his opinion (p. vll of abstract) : “AVe think it fairly deducible from the admitted facts, if not stated in so many words, that the hydraulic basin referred to as being at Norton’s mills was a part of the original construction of the canal and that before the deepening of the summit level the surplus or waste water from that level was turned into the Desplaines River in the same manner it has been since, (34) although in much less quantities.” There is no warrant for this deduction. There is nothing in the admitted facts that directly or indirectly concedes that a drop of water passed from the canal at Lockport into the Desplaines River until the canal and river formed a junction and were united in one stream. There was no waste u'Citer at Lockport. There could not have been from the fact that the summit level was supplied only in part by feeders, and the canal authorities were compelled to and did erect extensive pumping works for the purpose of assisting in 6246 supplying that level with water from the Chicago River at Bridgeport. There is no evidence, therefore, nor any fair 1820 Bruley v. Adam, — Appt. 2nd Brief Sup. Ct. — Con. inference, that the volume of the water in the river was at the time of the execution of this contract, or the commence- ment of the suit which this contract settled, increased by the water running in the canal to the slightest extent, ex- cept at the point where the canal and river were one; and there could be no inference further from the true facts in the case than that drawn by Justice Pillsbnry when he says: ‘‘With these facts within the knowledge of the par- ties and, as we must conclude, taken into consideration by them in adjusting the matters in dispute, it would seem that the trustees treated the right to the exclusive use of the water of the river, increased by their own work, so far as it could be necessary to appropriate it for the purposes of navigation, as a sufficient considera- tion for the relinquishment upon their part of any claim to use or divert any portion of the water in the stream, from whatever source derived, not required for such purpose. ’ ’ The agreed state of facts, as appearing in 5th Gilman, upon which the Haven suit was brought (and the Haven con- tract itself), shows as conclusively and clearly as anything can show that at the time of the execution of the Haven re- lease all idea of making the deep cut and supplying the canal with ivater from Lake Michigan had been abandoned, 6247 and the canal authorities were compelled to" look elsewhere for their supply of water; and even if a slight quantity of water did escape from the canal into the river at Lock- port at this time, the quantity was inconsiderable, and was not taken into account either one way or the other in the ex- ecution and acceptance of this release. In fact, it is evident that the Havens never imagined for a moment that they were entitled to any water except that which flowed nat- urally in the Desplaines Kiver, and the Canal Trustees cer- tainly never imagined for a moment that they were releasing or abandoning their claim to water that might thereafter be added by them from Lake Michigan. So that from the con- dition of the thing which was the subject matter of this con- tract and the circumstances surrounding the parties at the time, it is evident that the only thing concerning which these parties contracted was the natural water of the Desplaines Eiver; and while we doubt not this release can be success- fully relied upon as a bar to the claim now made, it cer- tainly would be a strange construction of the release to say that it applied to other and different water than the natural water of the Desplaines River or that it applied to waters which, in the contemplation of the parties at that time, neve'r could become a subject of controversy. Again, the language 6248 of the release itself confirms us in the position we have taken. The release was executed to settle the suit brought 1821 for alleged damages ‘‘occasioned by diverting the water of said river/’ and in consideration of the money received the Havens “released and discharged the trustees from all action, rights of action, and all claims arising out of (36) any damages heretofore, now or hereafter to be sustained by them hy reason of the use of the waters of the Desplaines River for the purpose of supplying said canal in the same man- ner the same is now supplied at the feeder at Joliet. That is, they released damages on account of the diversion of the imter of the Desplaines River, but in no manner can it be inferred that they set up any right or claim of right to the waters of Lake Michigan. And again, they grant the right to use and appropriate the water of the said Desplaines River at the feeders at Joliet below Guard Lock No. 1, for supply- ing the said canal for the purposes of navigation in the same manner the ivater in said river in connection ivith other feeders is now used for supplying said canal. " And it is a part of the history of the canal, well known to all citizens at all familiar with its management, that from the opening of the canal in 1848 until the present time it has been one of objects of the canal authorities to supply water power at all points and under all circumstances where it was practic- 6249 able for them to do so; and every act of the Legislature pro- viding for the government of the canal, from the year 1839 to the present time, has made it the duty of the Canal Com- missioners or trustees to derive all possible revenue from this source. Again, by applying to this release the well es- tablished doctrine that all grants are to he construed most strongly against the grantor, a doctrine so thoroughly set- tled as to be elementary, and we find that under the Havens’ release the Canal Commissioners would be entitled to use all the natural ivaters of the Desplaines River, so far at least as those claiming under the Havens are concerned, for the purposes of navigation in the canal. This right continues for all time to come; and if you limit the grant to the use of such waters (37) to the purposes of navigation alone, still applying the above rule, it could only apply to the natural ivaters of the river. Nothing else being in contemplation of the party at the time, leaving, therefore, the Canal Commissioners at full liberty to withdraw from the Desplaines River for the purpose of supplying water poiver privileges all the water which which they had added thereto from Lake Michigan or other sources, provided always that the natural waters of the river afforded, them a sufficient supply for the purposes of navigation, as it 1822 Druleij v. Adam, — Appt. 2nd Brief Sup. Cf.—Con. is, by the improvement of the state, appellee has been greatly benefited and his water power largely increased. In what 6250 manner, therefore, can it be said that he has sustained dam- age? It seems to us clear that the effect given by Justice Pillsbury is unwarranted by the facts, and is in direct con- flict with the rule that he himself lays down. Again on page 14 of the abstract. Justice Pillsbury says: “From the admitted facts, and from the circumstances surrounding the making of the improvement, or deep cut so-called, the conclusion is rendered certain that the said improvement was not made for the purpose of supplying the canal below Guard Lock Xo. 1 with water for canal purposes, but for the purpose alone of improving the drainage facilities of the City of Chicago b\ making th^ canal an outlet for its sewers by way of the Despiaines Eiver. All the facts and circumstances negative the idea that it was a part of the plan of the city in making such deep cut, or of the State in allowing the city to do so, to create a water power on the Channahon level, or to furnish water for canal purposes.’^ It is impossible to believe that the learned judge who wrote this opinion had had his attention called to the act (38) of 1836 providing for the construction of the canal, for if he had he would have seen that it was originally contemplated that so far as possible the canal should be supplied from one end to the other with water from Lake Michigan. The origi- nal plan of the canal contemplated the use of that water and 6251 relied upon Lake Michigan as the principal source of sup- ply. It is also very evident that the learned judge failed to read the act of 1865, under which the deep cut was con- structed, for the title of that act would have disclosed to him his error. It is also very evident that the learned judge sup- posed that the counsel for the appellee had quoted in their brief in this court the whole of the preamble to the act of 1865, and that he accepted the conclusions to which counsel for appellee had arrived as to the object of this deep cut, with- out a careful examination of the act itself; for, if the act of 1836 and the title to the act of 1865, the preamble thereto, and the act itself, are considered together (and it is necessary to thus consider them in order to arrive at the legislative intent), it is as clear as the noonday sun in an unclouded sky that the object of the Legislature in causing this work to be done was to supply the canal with water from Lake Michi- gan, and to supply it for the use of the canal for all legiti- mate purposes, such as navigation of the canal itself, and the furnishing when practicable of water power along the 1823 route of the canal. The State did this work, and not the City of Chicago. It is true tliat the City of Chicago acted as the agent of the Stide in so doing. The City of (hiicago 6252 had an object to accomplish in which the State had no inter- est; but being an object of public importance, the State fa- cilitated its accomplishment by allowing the city to advance the necessary funds to complete what the State had already planned, (39) giving the city a lien, which lien was subsequently discharged by the State. The State never for one moment surrendered the control of the canal. The State never had in allowing this work to be done any other object in view than the deep- ening of the canal itself, and the act under which the work was done provided that the City of Chicago should be reimbursed, either from the revenues of the canal or from the treasury of the State. And if the learned judge was in possession of all these facts at the time of penning the quotation last above made, the conclusion arrived at is unaccountable, and must be a surprise to every one conversant with the facts, as well as to himself on further reflection. V I. We desire to suggest in closing that the Appellate Court had no jurisdiction to hear or determine this case. ' Sec. 88 of the Practice Act, Sess. Laws 1879, p. 222, pro- vides that “All cases relating to revenue, or in which the State is interested as a party or otherwise^ shall be taken directly to the Supreme Court.” 6253 In the case at bar the State is directly interested, not as a party, it is true, but in the result. If this judgment is col- lected the State would be both legally and morally bound to refund the money to the appellant. And then again, if the judgment of the Appellate Court is affirmed, all revenue to the State from this source will be lost. Eespectfullv submitted, G. D. A. Parks, E. F. Bull, For Appellant. ) I 1 6256 In the Supreme Court of Illinois^ Northern Grand Division. To March Term, A. D. 1882. 1827 Win. M. Druly, appellant, vs. William Adam, appellee. Appeal from Appellate Court, Second District. Petition for Kehearing. May it please your Honors: So important are the public rights involved in this case, so novel some of the questions it presents, and from cer- tain special circumstances happening to attend it so disas- trous to the interests of the canal the final establishment in this court of the claim of the appellee, that we must earn- estly entreat the court to reconsider- its judgment. That the opinion purports to be unanimous, and that it hears on its face formidable marks of elaborate, painstaking and assidu- ous investigation by the learned judge who prepared it, are, no doubt, inauspicious and disheartening circumstances. But, while yielding our tribute of respect to its force and abilify, we must be permitted to say, with all deference, that we cannot yet surrender the main position assumed by us in the argu- ments which we had the honor to advance. And we now ask your Honors to grant a rehearing with the more con- 6257 fidence, because the past history of the court encourages us to believe that in a case, not only of remarkable public im- portance, but entirely new in this State, it will be and in- deed can be restrained by no pride of opinion from retesting its first impressions. I. The Havens’ release, vrhich, it never has been questioned on either side, is obligatory on both parties, the appellee as grantee of the Havens succeeding to all their rights, and the State, as bound by all contracts entered into by the Canal Trustees, within the scope of the trust. The instrument, although releasing part damages and prop- erly enough called ‘'a release/’ was in fact and in form a grant to the Canal Trustees in 1853 of the right to divert the entire waters of the Desplaines Eiver to the use of the I. & M. Canal ^Hor the purposes of navigation.” The court scarce need be reminded of the rule that grants 1828 Pei. for Rehearing, Sup. Ct. — Driileg vs. Adam. — Con. are construed most strongly against the grantor. “Whep a deed is so drawn that some will read it one way and some another, it is a well established rule that that meaning shall he adopted which is adverse to the interests of the grantor/’ Alton V. Illinois T. Co., 12 111., 58. And where the grant is to the State, or to a party pro hoc vice representing the State, this rule will be applied with more than its ordinary force. Where, as here, the extent of the 6258 grant is ambiguous and a construction is sought to be put ( 3 ) upon it which in effect estops the State from asserting rights not expressly waived and not necessarily involved in the grant, or in any of the conditions annexed to the grant, such con- struction will not be allowed. Estoppels are not held ap- plicable to the State. People V. Broivn, 67 111., 468. This element in the case, a consideration on which we had thought tit to lay stress in our argument, seems to us, speak- ing wdth great deference, to have been altogether laid aside in the opinion of the court. A most important right of the State of Illinois is swept away by a train of reasoning which. { as w^e humbly think, would be deemed harsh and technical when applied even to the case of a private individual. The Canal Trustees in this instrument were simply gran- tees. They bound themselves to nothing; they granted noth- ing, waived nothing; nor were there any conditions annexed to the grant by which the trustees assumed impliedly any liability whatever. In settlement of their dispute with the Havens they gave them a certain sum of money for the con- veyance of a perpetual right to use ^Ahe waters of the Des- plaines Eiver” for purposes of navigation. If the waters which they furnished themselves from the Summit Level at Lockport became by operation of law under the circumstances of this case, without the aid of any special contract, the proper wmters of the Hesplaines Eiver, putting it out of the 6259 power of the State to assert any exclusive right to it after it again returned to and became part of the waters of the canal, that of course ends the controversy. The expression used in the release was quite enough in that view. There was no necessity to make any special explicit reference to this addition to the volume of the river. But this proposi’ tion, with all due deference we deny, and shall hereafter ask the court to reconsider. (^) But the point now and here is, did the mere acceptance of a gi'ant describing the water as ‘4he water of the Desplaines Eiver,” and containing no reference to this special contribu- 1829 tion to the flow supplied by the grantees themselves, operate to estop the grantees or the State, their cestui que trust, after the termination of the trust, from asserting their right to this contributed water? We must be permitted to persist in our original position, that it did not estop the State and would not have estopped a private individual. The release was the settlement of the a suit in court. What was claimed in that suit appears from the reports of this court. Canal Trustees v. Haven, 5 Gil., 556. Same v. Same, 11 111., 554. If we examine these reports carefully and with scrutiny from beginning to end, we shall fail to see the first glimpse of a claim on the part of the Havens that they claim any right other than that of ordinary riparian proprietors on the 6260 east bank of the Desplaines River, a natural water course, to the use of the whole volume of water which had immemor- ially flowed through the channel thereof. Not a glimpse, not a trace, not a whisper of any other claim. Read Justice Treat ^s opinion. He speaks simply of the natural flow; and that in half a dozen instances. See appellant’s first brief, p. 46. That particular feature of the case was not argued nor hinted at in the argument of either of those appeals. But there is that to be found in the statement of the first case, which is positively decisive on this point. The Havens had built their saw mill in 1839, and their grist mill in 1842, years before the alleged diversion by the trustees. Says Justice Trumbull: ‘^Said mills and buildings have been used by the ( 5 ) plaintiffs for the uses and purposes for which they were built from the time they were built as aforesaid till the 20th day of April, 1848; the wafer in said river being at times insufficient for all said machinery d' What water? What is here meant as the water of the Desplaines River? During this era in- the annals of the Havens’ mill, from 1839 to 20th April, 1848, when the canal was first opened, certainly there can be no doubt as to what was their status as riparian pro-^ prietors. They pretended to claim only the natural flow of the stream, under the old maxim: '‘Aqua currit et debat cur- rere, ut currere solebatd’ Solebat — accustomed to flow, or, 6261 as it is often expressed, imanemorially accustomed to flow The new era commenced 20th April, 1848. At that date the trustees assumed the right to appropriate all the waters of the river as a feeder, diverting them entirely at their pleasure from the Havens’ mills. Did the counsel on either side or did the court seem to recognize any change in their riparian rights from the fact that on the 20th April, 1848, the flow 1830 Pet. for Rehearing , Sup. Ct. — Druley vs. Adam. — Con. was improved by the surplus from the summit level dis- charged at Lockport? No; we say unhesitatingly, no. The point is nowhere adverted to. Such as their rights were in 1839 such they continued to be in 1848, no more, no less and no other in the view of the court. Mark! the diversions of which the Havens complained oc- curred on the 20th April, 1848, the day the canal was opened for use. 5 Gil., p. 554. On that day the trustees diverted - the whole or principal part of the waters of said river : * * * ^‘so that the plaintiffs are wholly deprived of the use of the water at their said mills, and have not since been able to run their machinery.’’ The inference is, that before the 20th of April, 1848, they were able to run their machinery ( 6 ) with ‘Ghe waters of the river”; but since that day they have not been permitted to use that same water, by reason of the diversion. Can anything be plainer? Throughout the opin- ion the river is spoken of in its character as a natural water course, without even the slightest side glance for a moment 6262 at the peculiar relation which the canal and river began to bear to each other when the pumping engine at Bridge- port began to borrow a supply from Lake Michigan. The only reference to the subject is where the Havens complain that when they commenced their enterprise in 1839 they did so in view of the deep cut plan, which would have obviated the necessity of using the Hesplaines as a feeder at all; and that they had received no warning of a change of plan till 1843, when the mills had been all built and were in use. Take the second appeal, reported in 11 Ills. Where is there any spark of evidence or even ground for conjecture that in the assessment of their damages they had had the impudence to ask compensation from the trustees for water paid for and furnished by the trustees themselves? We entreat the court to again look carefully through these reports and see if we are not and have not been right in the view we have pressed with so much confidence. And on this subject it is a curious fact that the very state trustee who conducted this negotiation for a settlement with the Havens, and who knew better than most living men the intention and understanding of the parties, was the circuit judge who tried anJ decided this case. But, at all events, the release had reference to the use of the Hesplaines as a feeder under the conditions^ of fact theii existing, to-wit, on the 22d day of August, 1853. Stout V. Whitney, 12 111., 227. 1831 6263 (7) Assuredly it is a very hard and even strained construc- tion to adopt against a momentous interest of the people of this State, that even if the trustees he supposed willing to include the diversion of their own supply in the estimate of damages in 1853, they meant also to relinquish the legal rights of the State for all time in the immeasurably larger contribu- tion through the deep cut made eighteen years afterwards by a strange and then entirely unlooked for and undreamed of series of events. We therefore feel warranted, with all due deference to the court, to reiterate our original proposi- tion that the grant from the Havens does not evince a claim on their part; much less does the acceptance of it evince a negotiation by the trustees of a right in the grantors, as lower riparian proprietors, to any part of this surplus water discharged from the canal and added to the river at Lockport. There are one or two other considerations of interest con* nected with this Havens ’ release : The court will see by Section 16 of the Canal Act of 1836 (Sess. L. 1836, p. 11-5), that, ‘‘The said canal shall not be less than 45 feet wide at the surface, 30 feet at the base, and of suf- ficient depth to insure a navigation of at least 4 feet, to be suitable for ordinary canal boat navigation; to he supplied ivith tvater from Lake Michigan and such other sources as the Canal Commissioners may think proper, and to be con- structed in a manner best calculated to promote the perma- nent interests of the country,’’ &c., &c. 6264 From this quotation and the several other sections of that act the court will see that it was the original inten- tion of the Legislature of this State to supply the Illinois and Michigan Canal when completed, so far as practicable, by water from Lake Michigan. That could only be done by cutting down ( 8 ) ‘ what is known in this record as the “Summit Level” to such an extent as to allow the water to flow naturally from Lake Michigan into the canal. Owing to the financial embarrassments under which the State labored during the time of the construction of this canal, the original plan of supplying the canal with water from Lake Michigan was temporarily abandoned, and it became neces- , sary, therefore, to provide other sources of supply at a less expense, the result of which was the construction of what is known as the “Summit Level,” which was supplied with water either by pumping or from other sources, all of which were to a great extent unreliable, but required a much less immediate expense on the part of the State. 1832 Pet. for Rehearing , Sup. Ct. — Druleg vs. Adam. — Con. Under these circumstances the Canal Commissioners, or their successors, the Canal Trustees, being authorized thereto by the State, for the time being abandoned the idea of sup- plying the canal with water from Lake Michigan. Amongst other sources of supply the Canal Trustees sought to avail themselves of the waters of the Desplaines Kiver (so far as the same would go) for supplying the Channahon 6265 level with water for the purpose of navigation. The Canal Trustees on behalf of the State were riparian proprietors of the Desplaines Edver for a very considerable distance, and much of the way on both sides of the river, and they converted to the purposes of the canal a portion of the bed of that stream, making the bed of the stream the bed of the canal. At Dam number two, some little distance above appellee’s dam, the canal left the bed of the stream, and the waters of the stream were diverted by the Canal Trustees for the use of the canal. ( 9 ) At that time at the present site of appellee’s dam the Havens were riparian proprietors upon the eastern bank of the Desplaines Eiver and complained of the diversion by the Canal Trustees of a portion of the waters of that stream, and brought their suit therefor, which was determined by this court in 5 Gil., 548, supra, and in 11 111., 554, supra. We desire again to call the special attention of the court to the opinion by Treat, Chief Justice, in 11 Illinois, where it is expressly held that all the right that the Havens en- joyed was to one-half the water as it was acccustomed to flow in the channel, and that as they were riparian proprietors only upon one side of the stream, the State being the ripar- ian proprietor upon the other side of the stream, they had no right to erect a dam, and were entitled in any event to 6266 only nominal damages. Perhaps we will be better understood by quoting (page 557) from the opinion itself: ^^The appellees have a right to only one-half of the water, must use it as it is accustomed to ftoiv doivn the channel. The erection of a dam across the stream by means of which the head of water was increased, and the value of the site and improvements enhanced urns UNAUTHOKTZED. The assessiueut of damages for the de- privation of water must therefore be made with refer- ence to the actual value used, the one-half of the ivater naturally ftoicing along the channel^ ivithout taking into consideration anif artificial obstructions extending across the stream. If there had been no diversion of the water the appellees could not maintain their dam across the 1833 KivEE^ and the appellants were authorized by law to ap- propriate the water for the purpose of the canal, and they are only bound in this proceeding to compensate the appellees for the loss of their portion of it.’’ (10) It is not claimed here that the appellee has any interest except that which he derived from the Havens, and he is in no better position to recover for the diversion of the water complained of than the Havens would be if they still retained their interest. Neither of the parties contracted or understood that they were contracting with reference to any addition that might 6267 be made to that flow of water by artificial means. It is true that if the addition to the natural waters of the stream from artificial sources is made by parties other than those seeking to ivithdraw the ivater thus added, such additions be- come a part of the natural waters of the stream, and cannot be withdrawn to the injury of any of the riparian proprie- tors, unless such ivithdrawal is made hy the person who adds the volume of ivater to the stream and before such waters come into possession of the lower riparian proprietor. The intention of the parties to this Haven release must be gleaned not only from the writing itself, but from the char- acter of the subject matter of that writing as well as the sur- rounding circumstances. At the time of the execution of this release, as heretofore stated, the project of a deep cut through the Summit Level and of supplying the canal with water from Lake Michigan had been temporarily abandoned. Neither of these parties contemplated that such improvement would ever be made, although it was well understood that the original plan contemplated them. The Canal Trustees desired to procure a right to divert the waters of the Desplaines Kiver, such waters as flow into that river in a state of nature, and perhaps such water as might be added by any parties other than themselves, by arti- ficial means, and it would be a strange construction of that ( 11 ) contract, and one which would virtually charge the Canal 6268 Trustees with a serious disregard of their official duties, if not an absolute diversion of the trust reposed in them, to say that they intended by that contract to pay the Havens for, or to release to the Havens, the right to use waters which they themselves might add to the Desplaines Eiver by arti- ficial means. Can it be contended for a moment that the parties to the Havens release had in view, in making that contract, any* thing except the condition of things as they then existed? 1834 Pet. for Rehearing , Sup. Ct. — Druleg vs. Adam. — Con. The Canal Trustees released nothing; it was the Havens that made the release. They released what they then had, nothing more. The release, then, leaves the parties thereto in the same po- sition in reference to accretions to the natural flow of water in the stream — in the same condition precisely they would have been in if no release had been executed; and if the water added to the stream, by artiflcial means, could have been withdrawn by the Canal Commissioners, if no release had been made, such right still exists, so that it is unnecessary to take into consideration the effect of that release. They certainly could not release that which they did not own. If, therefore, the water added to the stream by artiflcial means could be withdrawn by the person or persons adding the same, before it reached the possession of appellee, if 6269 the release had not been executed, that release will not en- title appellee thereto. (12) II. If we are correct in this, then is the water in question abandoned by being discharged at Lockport and returned again to the canal at Joliet? Let it be admitted that it k surplus water not required for navigation, and which when it reaches the terminus of the Summit Level must be got rid of so far as the exigencies at that point on the canal are con- cerned. The capacity of the canal we know is wholly insuf- ficient to hold it. And, we admit further, that if the State, in adopting its plan of canal administration and manage- ment, has no power to assert a right to the use of water for hydraulic purposes merely, and indeed to assert it as a right just as perfect and absolute as its right to control of water for purposes of navigation, then, when once detached from the channel of the canal the continuity of its relations to the canal is finally and irreclaimably severed. But if, on the other hand, the creation and utilization of water power, wherever practicable, is just as much a branch of our recog- nized and established canal policy as navigation itself, and the income derivable from it just as legitimate, desirable and customary a source of revenue as tolls and transportation; and if, therefore, there is the same occasion for asserting the rights of the State to the control of the water with respect to the one object as with respect to the other, then we submit 6270 that the appellee, in order to maintain his proposition, that the State has lost its rights in this case, must establish either that there was an actual intention to abandon, or whatever the intention, that the surplus water was suffered to mingle with the natural flow of the river under such conditions, that when 1835 it again was restored to the canal above Dam No. 1, it had become (13) with reference to appellee’s right, irrevocably incorporated with the natural flow of the Desj^laines. We shall assume, what we hereafter will attempt to prove, that water available for hydraulic purposes at its points of de- scent from one level to another is to be deemed water be- longing to the canal in the same sense as water required for navigation. But it may so happen, if the rights of the State to the water can be upheld for the whole distance, say from Norton’s mill at Lockport to Druly’s mill at Joliet, that the same water may be, susceptible of repeated use on successive levels. And if it can be so repeatedly used before finally passing from the domain of the State, it assuredly is the duty of the com- missioners to reap to the full benefit of that repeated use. If they had the legal right, it was as much their duty to lease this water to Slater and Druly at the tliiyd fall as it was to lease to Norton & Co. at the first fall. No one will deny, the opinion of the court does not question, but that if the sur- plus had been discharged into a channel belonging to the 6271 State connecting the summit level with the upper level at Joliet and constructed for that very purpose, the rights of the State would have been preserved. The mere fact of trans- mission from one level to another cannot affect the right. It is the mode or process of transmission which presents the question. What is there in this mode of passing the water from one point to another on the canal, which is supposed to sever the right of the State to it'? Simply this. At Lockport the river is lower than the canal ; at Joliet, at the point of inter- section, the canal is lower than the river. At Lockport, the surplus, which we admit must be got rid of there in some (14) way, is discharged into channels which lead down to the Desplaines, not far distant. But when discharged, the rela- tive course and comparative levels of the two water courses are such, that it is destined to rejoin the canal on the 5th level below the summit level, that is, on the level between Lock No. 4 and Dam No. 1. It thus leaves the canal under the necessary concomitant condition of returning to the canal and of returning to it before the beneficial rights of the ap- pellee, as a lower riparian proprietor, become involved. If abandonment, in the sense in which the term is here used, de- pends at all on intention^ we absolutely know from the origi- 18o6 Pei. for Rehearing, Sup. Ct. — Driiley vs. Adam. — Con. nal plan of the canal itself, that there was not and could not be any intention on the part of the State to abandon the 6272 water at Lockport irreclaimably to public use, save for the distance between the two levels. If, then, by a physical necessity, the water was to return to the possession of the State, is it not impossible to successfully maintain that it was intentionally abandoned? Thus the question narl-ows itself to this single point: Sup- posing that the State intended to assert whatever legal rights she had or might have in this water after it should have been restored to the canal, does the fact of its previous trans- mission from the one point to the other through the medium of the Desplaines Kiver, a channel not belonging to her, pre- clude her claim? We must again respectfully insist that it does not. Why should this circumstance have the least significance upon the rights of the State as against the appellee, a lower riparian proprietor? The river, it will be borne in mind, was already appropriated to the use of the State as a Feedek, and so expressly recognized by the Havens themselves. (Eec., p. 26; Abst.. p. 6.) (15) How and when originally appropriated to that use, as against the riparian owners between Lockport and Joliet, does not appear; whether by condemnation or by voluntary grant. Nor is it necessary to know. The grantors of the appellee have recognized the fact that it was a Feedek, with all the rights to the State which the term implies, as against 6273 all parties above Dam No. 2. The channel was hers, then, quite as effectually, so far as concerns the questions in this case, as if she had owned the lands on both banks, as indeed she did for a good part of the way, which crosses sections 23 and 27 in Lockport and 3 in Joliet — odd numbered and therefore canal sections. If she owned or controlled this part of the channel as a feeder, how does it lay in the mouth of the appellee to ^say that the State could not use it to carry the surplus water in question as well as the natural flow of the stream? For what reason which can commend itself to the good sense of the court can he claim that that part of the water which comes into the upper basin through the river is in any different legal predicament from that part that de- scends through the locks? For, obviously, the one part is no more certainlv destined to rea]:>pear within the walls of the canal than the other is to flow down between those walls. Therefore we again maintain that the case in all its essen- tial features is the same, when we reach Dam 2, as if the 18:37 water in dispute liad flown continuously all the way through the canal itself to the pool or basin above Dam No. 1, where the canal intersects the river. Here for the first time the canal and river are mingled to- gether and flow in a common channel, and here the main is- sue develops itself in a distinct form. As between A, an upper, and B, a lower riparian owner upon a natural water 6274 (16) course, if A on his own premises adds to its flow a reservoir or stream of his own, can he again take out, if done on his own premises, what he brings in, provided B’s original on natural flow is not diminished? Why not? Can a single reason be urged against the propo- sition, founded in natural justice? Here the agreed case informs the court that the appellee receives double the amount of water he had before his purchase from the Havens. What claim for damages can be rationally stated on such a state of facts as this? On this point we do most earnestly entreat the court to again review and consider the authorities to which we called its attention in our former argument. Let the California au- thorities be swept aside as inapplicable, although we cannot but observe that the learned judge who writes the opinion in this case himself cites a California authority, Eddy v. Simp- son, 3 Cal., p. 249. There still remains an array of cases sup- porting our view which, as we humbly think, has not been overcome or even shaken. There still remains the funda- mental principle regulating the mutual rights between an up- per and a lower riparian proprietor, that the lower has abso- lutely but one claim against the upper, and that is to deliver to him, unimpaired in quantity, quality and conditions of fall, the natural and customary flow of the stream. Without re- peating the list of authorities cited in our first brief, we beg 6275 permission to again call attention to them as found on pages 6, 7 and 8. The system of aquatic law is founded, like every other branch of jurisprudence, on principles of natural reason and justice. Were it res nova, what court would for a moment endure this claim, which rather shows impudence and in- (17) gratitude than violated right? What right has the appellee to any water of the Desplaines Biver save that which, in the language of the precedents, could be described as immemor- ially flowing therein? If B gets the whole natural and cus- tomary flow, what business has he even to inquire what use A 1838 Pet. for Rehearing, Sup. Ct.—Drideg vs. Adam. — Con. chooses to make of his portion of the channel! The rights and liabilities deduced from a wrongful confusion of goods afford us no analogies of use here. The identity of water as a motive power can never be of any consequence. The rights of all parties concerned may be fully satisfied by equiva- lent quantities. Where in joining together the links of a chain of water communication it becomes necessary, as it often does, to mingle the flow of different water courses, there can be no possible cause of complaint to any one of the parties concerned in such mingled waters, if at last he re- ceives his full share. The learned judge, whose opinion we are presuming to criticise, from imperative demands of professional duty in a most important case, seems to regard it as a doctrine to be 6276 collected from the authorities that where an upper pro- prietor improves the flow, from an artificial or foreign source, although for his ovti purposes, he cannot afterwards with- draw it. He quotes the language from Angell, which we had quoted ourselves in our first brief, p. 17, and which is again referred to and explained in our additional brief, p. 2. It is, in fact, a literal quotation from the opinion in Tourte- lotte V. Phelps, 4th Gray, 376, in which the point now under consideration was not even hinted at by the court. The ques- tion there was whether, in case A should cause an improve- ment in the flow of a stream by storing it in reservoirs, the benefit of which B below necessarily enjoyed, he (B) (18) should by reason of such benefit be liable for damages to the owner of the land overflowed. The proposition is incorpo- rated by Angell in the text of his work, without indicating the special facts and features of the case where it was first expressed. In short, we venture the assertion that no de- cision can be found giving countenance to the doctrine con- tended for, save that of Eddy v. Simpson, one of those very California authorities which have been thrown out as aliens from the discussion. In our ‘^Additional Argument” we quoted at length from the three leading cases of Whittier V. Cocheca Mfg. Co. (N. H.), Elliott v. Eitchhiirg R. R. Co. (Mass.), and Society for Mfg., Sc., v. Morris Canal Co. (X. ^ J.). Where, we ask, has any one of these decisions been re- ferred to doubtingly or disapprovingly by any text writer 6277 or by any court or any judge! And where, save in Eddy V. Simpson, can a decision be found that directly controverts our theory! What court has said that an upper proprietor, who adds by artificial means water to the stream with intent to take it out again within his own domain, may not do so, provided he does not withhold the natural and customary flow from his neighbor below! 1839 III. It seems to us that the court has entirely misconceived the positions which we assumed in the argument of this case. It is said in the opinion that there is no property in running water. It is like a wild animal. If the first captor permits it to escape, it is liable to be seized by another, and thereby become the property of the second captor. We are well aware that the doctrine is thoroughly estah- (19) lished that there is no property in the natural waters of a running stream; that all the riparian proprietors can claim is the use thereof. Such use must be a reasonable use, and of such a character as not seriously to inconvenience the lower riparian proprietor, or to interfere with a like use of the same waters by him. This doctrine has not only been thor- oughly settled by this court, but the same view has been adopted by every tribunal that has ever been called upon to pass upon this (piestion, and we certainly never intended to be understood as controverting it. Neither do we intend to be 6278 understood as controverting the doctrine that in addition to the natural waters of a stream the several ri])arian proprie- tors are entitled to the use of all the water that may have been added to the natural waters of the stream by other ri- parian proprietors, by the draining of mines, or other sources of like character, unless the same or a like quantity has been withdrawn from the stream hy the person supplying the same before it comes into the })ossession of the servient riparian proprietor. Neither do we contend that any ])erson has a right, to the detriment of other riparian })roprietors, to with- draw from the stream itself any water that has thus been* added by any person, other than he who soeks thus to with- draw it. In other vcords, if A. B, C and D are riparian proprietors in the order named, and A, by a drainage of mines or other means, adds to the waters of the stream, and the waters thus added pass from the premises of A to those of B, B would have no right to withdraw tlie waters thus added by A by artificial means, to the detriment of C and D,^the servient riparian pro])rietors, and no matter for what purpose A may have added the waters to the stream by artificial means he has an undoubted right to withdravc the waters thus added ( 20 ) while the same are in his })ossession, and by doing so h^ does no injury to the lower riparian proprietors, for they get 1840 Pet. for Rehearing, Sup. Ct. — Druleg vs. Adam. — Con. all that they are entitled to. A has simply added to the stream upon his own premises and withdrawn therefrom a 6279 like quantity to that added, and in so doing has injured no one. We can perhaps illustrate the idea we desire to advance by the accompanying diagram showing an imaginary stream upon which A, B, C and D are supposed to be, in the order named, riparian proprietors and severally owning mill sites upon the supposed stream. 6280 (Said diagram ajq:>ears upon opposite page.) 1841 Pet. for B^eJicaring, Sup. Ct. — Druley vs. xidam. — Con. 184o (21) 6281 If A on his own territory introduces water by artificial means for his individual use, he would undoubtedly be en- titled to withdraw a like quantity at any time before the water thus added had passed from his premises to those of B, and neither of the servient riparian proprietors could com- plain of such withdrawal ; but B would not have the right to withdraw the water thus added by A to the detriment of C or D. Suppose, however, A becomes seized of C’s mill site and water privileges ; thus uniting in one person the mill sites A and C, and A should desire to allow the water he had ad- ded by artificial means to pass through the bed of the stream over B’s mill site. In such case, B, from the position he oc- cupies, would necessarily enjoy the benefit of the water ad- ded by A as it passed over his premises; but would D have a right to insist upon the same benefits enjoyed by B! On the contrary, would not A have the same right to withdraw the water thus added by him, if he saw fit to do so, upon his newly acquired property, the mill site formerly owned by Cf It seems to us he would. Naturally justice so indicates, and we undertake to say that no authority ancient or modern . holds to a contrary doctrine. The ancient English authorities cited in our former briefs fully sustain the position we here assume, and they are in full accord with the American cases on this subject, and a careful persual of those authorities will sustain our position. 6282 In several of these English cases it is held, under circum- stances similar to the supposed case, that A, the person thus contributing by artificial means to the flow of water in a running stream, has a right to withdraw the same on his own premises. But if A does not see fit to withdraw the same then he is held to have contributed the water to the stream for the common benefit of all servient riprian proprietors. ( 22 ) IV. The learned Judge who wrote the opinion filed in this case cited several authors and cases to the effect that a lower riparian proprietor, from his position, necessarily enjoys the benefits of any improvements made by an upper proprietor, eitlier by making reservoirs whereby the water is preserved for seasons of low water, or by flowing increased areas of land. This doctrine we do not seek to controvert. The lower riparian proprietor is undoubtedly entitled to all such bene- fits as he necessarily enjoys, nor can he be held, against his will, to contribute to the expense of the improvements thus 1844 Pet. for Rehearing , Sup. Ct. — Druley vs. Adam. — Con. made, nor is he liable for damages caused by flowing increased areas of land, if he took no part in causing the same. But this doctrine is not applicable to the case at bar. If there was a mill at Daggett’s mill site (but there is not) Dag- gett would necessarily enjoy the benefit of the increased flow of water; but that furnishes no reason why appellee should. 6283 These authorities only refer to cases where the upper ripar- ian proprietor, in making improvements to his own prop- . erty, is unable to reap the benefit thereof without at the same time conferring a benefit upon the lower. For instance, each riparian proprietor is entitled to the use of all the water naturally flowing in the stream. If the upper proprietor preserves the same in reservoirs against seasons of low water, he preserves water that in a state of nature is accustomed to flow in the channel of the stream and to the use of which the lower proprietor is entitled; and in (23) preserving it for himself he necessarily preserves it for those below him. There is no authority holding, however, that the lower proprietor is necessarily entitled to the benefit of water arti- fically added to the stream, if the upper proprietor withdraws the same before it comes to the servient estate — not one; and we think we speak advisedly in asserting this. The upper proprietor has no right to withdraw the natural waters of the stream to the injury of the lower ; but no case can be found ivhere it has been held he has no right to with- draw a like quantity to that tvhich he has added to the stream by artificial means, if he does so before such waters come into the possession or upon the premises of the lower prop- rietor. There is a broad and clear distinction between improve- ments made whereby the natural waters of the stream are 6284 preserved against seasons of drought, the benefits of which from the nature of things must be enjoyed by the lower proprietor, and improvements made which by artificial means adds to the volume of quantity of water in the stream. The lower proprietor is by law entitled to the use of all the water naturally flowing in the stream, and cannot with- out his consent be deprived thereof; but he is not entitled necessarily to water added by an upper proprietor unless the upper proprietor thus adding the same abandons it to his use; and he certainly cannot be held to so abandon the same if he withdraws it on his own premises before it reaches such lower proprietor. 1845 V. A riparian proprietor takes his estate subject to the ease- ment of the stream. He may not desire to use the (24) water. The stream may be a nuisance to him, and yet he is bound to permit the stream to flow through his premises so as to reach those of the lower proprietor in the accustomed channel of the stream. He would have no right to divert the stream at the point where it first enters his premises so as to prevent it from passing to those below him. While his es- tate is charged with this easement, it is onlg charged to the extent necessary to carry off the water naturally flowing into the stream. If the channel of the stream is barely sufficient to carry off the water naturally flowing into the stream, any 6285 one adding to such natural flow of water and thereby caus- ing damage to him can be held responsible. It is well said he is entitled to the use of the waters natur- ally flowing in the stream, and any one materially interfering therewith can be made to respond in nominal damages at least; and with just as much force can it be said that any one who materially adds to the burden of this easement upon his estate can be made to respond in nominal damages at least, and if the person who has added to the natural waters of a stream and thereby increased the burden shall withdraw a like quantity of water before it passes upon the premises burdened with the easement, the owner of such premises could not complain, for by such withdrawal he has suffered no damage, the burden has not been increased. Suppose in the case at bar Adams had all the water he could use, all that the capacity of the stream could accommo- date, and that the commissioners, by turning this large quan- tity of water into the river and permitting the same to flow down and upon his premises, had caused him a serious dam- age, would any one deny his legal and equitable right to re- cover for such damage! (25) We cannot compel him against his will to take any addi- tional burden upon his estate, and this additional water might, under some circumstances, be a serious additional burden. Nor can he compel us to permit him to receive the benefit of 6286 our improvements. ^ The illustration referred to by the learned Judge who wrote the opinion in this case, wherein he compared the title to running water to the case of the capture of wild animals, is a peculiarly happy one for our purpose. We will suppose the Canal Commissioners have a close at Lockport wherein 1846 Pet. for Pieliearing , Svp. Ct. — Druley vs. Adam. — Con. they keep a herd of wild animals, i. e., the water of Lake Michigan, which at great expense they have captured and brought to that point; they voluntarily allow this herd to escape and go across a close not owned by them, but inter- vening between their close at Lockport and another close owned by them at Joliet. It is true the herd is going in the direction of appellee’s close, and, but for the act of the Canal Commissioners, would all eventually have reached it; but as soon as it enters upon the close of the Canal Commissioners at Joliet they re-capture a part of the herd, but upon their own premises, and by reason of such re-capture only a por- tion of them reach appellee’s close. As we undoubtedly had a right to capture the whole herd, ought appellee to complain because we permit him to capture a part! But if a portion of the herd that does come upon appellee’s close damage him, the commissioners would undoubtedly be liable for permitting the escape. There is nothing so mysterious about water after all, if we will only carefully and soberly consider the subject. 6287 So far as its use is concerned, which is all the right man can (26) (from the character of the fluid) have in running water, we should apply the common rules of law governing other simi- lar rights. A riparian proprietor has only a right to the use of a like quantity to that which naturally flows to him, and if he gets that he is uninjured. VI. We earnestly, but respectfully, again ask the court to re- view the authorities cited in our former arguments, for we are firmly convinced those authorities have been miscon- ceived by the court. If we are capable of comprehending them, they fail to support the opinion filed, but do support the positions assumed by us. We never thought of contro- verting some of the positions it seems to be assumed we de- nied ; never for a moment supposed man could have any prop- erty in running water itself; and never supposed one man could withdraw to the detriment of those below him water added by another. We, however, insist that no authority can he found de- nying to a man the right of withdrawing any water he may have added to the volume of a stream, if he does so before it comes upon the premises or into the possession of a lower proprietor, and what was said by Mr. Justice Scolfield, by way of argument, in the Batavia ]\ranufacturing Co. case, 91 Ilk, 230, ap])lied to a case where the additional water had reached 1847 the common dam, and hence the joint possession of both par- 6288 ties. There being no authority to the contrary, it is against natural justice to deny to a party thus adding waters to a stream the privilege of withdrawing the same; for by sucli withdrawal he harms no one. On the contrary, several (27) of these authorities distinctly assert the right of such with- drawal, and this, too, notwithstanding the added waters have been permitted to flow to the lower proprietor for, in some cases, sixty years. That is, the lower proprietor can acquire no interest therein by prescription. In this connection we de- sire to call the particular attention of the court to our ad- ditional argument, filed in this case, pp. 28 to 27, and to the authorities there cited. Some of the text books do not seem to make the distinction we seek to make, that is, that no one except the person ad- ding to the volume of the stream has a right to withdraw the water added; and, from a casual reading of the text, the court might well conceive that the language used applied to all alike; but a careful and critical examination will show that the rule adopted by the text books as to the withdrawal of artificially added water only applies to persons other than those adding the same. With this distinction in view, the doc- trine is in harmony with the principles of natural justice; but, if the distinction is ignored, the rule is inequitalhe and unjust. In the case previously supposed of successive riparian proprietors A, the upper proprietor, adds water to the 6289 stream, which he permits to flow over B’s premises. B con- siders it a benefit and does not complain. C may consider it and it may in fact be a serious damage to him. And D, on the contrary, may consider it a benefit. To avoid a suit from C he must withdraw the water before it enters upon his prem- ises. And if the position of appellee is correct, to avoid a suit by ]), the lower proprietor, he must again restore the artificially added water to the bed of the stream before it comes upon D’s premises, which might be impossible, and, (28) whether possible or impossible is absurd. An examination of the cases cited in support of the rule enunciated by the text books shows that such rule does not and is not intended to apply to the person who has caused the water to be added to the stream, provided he withdraws the same before it comes into the possession of the lower proprietor complain- ing of the withdrawal; but is only intended to apply to cases where such withdrawal is made by some one who has not contributed to the increased supply. 1848 Pet. for Rehearing, Sup. Ct. — Druley vs. Adam. — Con. VII. The learned Judge, who speaks for the court, has sought to distinguish the case at bar from the operation of the New Hampshire, Massachusetts and New Jersey authorities we had cited, upon the ground, as we understand him, that the party in each instance who withdraws the water he had him- self contributed from an exterior source, held the status of 6290 riparian proprietor continuously from the point of intro- duction to the point of discharge; that the whole series of operations was embraced under a single plan; and that the processes of addition and subtraction were to be treated as concurrent and simultaneous acts. We must entreat the court, with all deference, to review its reasoning upon this point. In our first argument (p. 31) we had presented with as much fullness as we thought necessary our position, that the whole plan of the canal was to be surveyed as a unit. Any two levels, whether contiguous or not, or however remote from each other, were members of the same integral system of water communication. Not only so, but the physical features of the region wliich it traversed, its hills and valleys (29) and interseeting streams, were constituent ingredients and elements of that plan, which must have been consulted by the engineer, and every stone in every structure of the whole work from terminus to terminus was laid with an eye to the exigencies dictated by these contiguous localities. Thus, ac- cording to the original plan, as we know, (because it was an inevitable necessity of the case,) provision was made to discharge the surplus water from the Summit Level and re- ceive it again on the Fifth level below. And the Desplaines River was engrafted upon that original plan, not only as a feeder to supply its own waters, but as a connecting link be- tween these two levels. With or without due authority by 6291 previous legal proceedings for the appropriation of it to public use, it was in fact ah initio enlisted into the service of the canal for this needful double service. So far, therefore, as plan is concerned, there can be no doubt that the Desplaines River from a point opposite the hydraulic basin at Lockport to the point of intersection at Joliet was practically made an auxiliary and adjunct to the canal. And now for more than thirty years the state has exercised, without complaint or challenge from anybody, so far as these uses are concerned, unlimited and uninterrupted control. Is the court now pre- ])ared to say that the state had no jurisdiction over it in its character as a feeder between the points mentioned? Cer- 1849 tainly not. But if she should undeniably use the channel as a feeder, to convey its own proper \vaters to the canal, is it not rather fine-spun reasoning which would deny to her the right to employ it also for the homogeneous use of carrying her own surplus from the Summit Level to a lower level, where it could be again received and again applied to use- ful canal purposes? In short, by any rational tests, is the unitv of (30) possession in the state broken, as the opinion seems to sup- pose? We beg further to remind the court that there has never been the least change in the original plan in any particular. What it was in 1836 such it was in 1848, when the shallow 6292 cut was adopted, and such it continued to be when the deep cut was commenced in 1871. The process has been and of course always must be precisely the same. Xo other is pos- sible, unless the state should resort to the absurd expedient of constructing a channel of her own to convey the surplus water between the points in question. We liave so often and so amply quoted from the New Hampshire, Massachusetts and New Jersey cases that we again venture to refer to them only to remark that we believe the court will find on a critical re-examination that in none of them did the upper owner, making and subsequently withdrawing an addition to the flow of the natural stream occupy the position of riparian pro- prietor continuously for the whole distance between the points of entrance and exit. This certainly was not the case in Whittier v. Coclieco Mfg. Co.; for in that case, as the record clearly shows, Whittier was a riparian proprietor upon one side of the stream, at a point midway between defendant’s reservoir and their mill, and when the water supplied by arti- ficial means from Bow Pond (defendant’s reservoir) arrived at the dam at Waldron’s Falls, commingled as it was with the natural waters of the stream, it was in the joint possession of Whittier and the defendant. And yet the defendant was held entitled to a like quantity of water to that supplied by him from Bow Pond without permitting Whittier the use 6293 thereof, and this too when upon its arrival at Waldron’s Falls it was in the joint possession of Whittier and the de- fendant. (31) VIII. The opinion says for a distance of near three miles the waters pass over soil owned by other parties than the state or Canal Trustees, or commissioners, among whom is the 1850 Pet. for Rehearing, Sap. Ct. — Druleg vs. Adam. — Con. owner of a mill at whicli these waters are used, known as Daggett’s Mill, a short distance below Lockport. The odd sections belong to the state, so that, as will be seen by the map, the distance in which the river passes over soil not owned by the state is overstated. Xor does the record show that there is any mill at the point marked ‘‘Daggett’s Mill,” on the map. Daggett’s Mill is marked upon the map as be- ing on Sec. 22. The record makes no mention of any mill ex- cept on Sec. 23, — an odd section. See Circuit Court Eecord, p. 22; Abst., in Appellate Court, p. 4. AYe are at a loss to conceive how these facts change the rights of the Canal Com- missioners, or of the state, so long as the water is withdraivn on premises owned by the state; but as it is mentioned in the opinion, thought best to allude to it. As a matter of fact, Daggett’s Mill has been abandoned for many years. Of course the record does not show this; neither does it show that Daggett’s iMill is or ever has been in operation. IX. 6294 The cases of The City of Chicago v. Foney, 60 111., 383, and Chicago v. McGraiv, 75 Ilk, 566, do not, as we conceive, shake the position which we. assume, that the deep cut was in fact the wmrk of the state. It is true the doctrine is estab- lished that Chicago was liable for the carelessness of its ser- vants and employes in the line of their duty, hut that is no (32) neir doctrine. Xo matter what the relations of the city to the state were. Xo matter if the city was willing, for rea- sons of its own, to advance the money to make the deep cut. Xo matter, even if the city had been a simple contractor of the state — and that, in fact, is what she was — her liability, under the facts stated in Chicago v. Foney, supra, was un- questioned. But neither of these cases establish any interest in the canal in the City of Chicago. The deep cut was made in ])ursuance of the origincd plan adopted in 1836, was a part and parcel of that plan, the entire control of the whole canal, deep cut and all, was retained and always has been retained by the state. The state has repaid the city for its outlays as originally contemplated, and the lien of the city was wholly released, and if this deep cut had been made in 1836 the bene- fits to the city arising therefrom would have been the same. All the legislation of the state shows that the dee]) cut plan of 1836 Avas never abandoned, except temporarily, and in 6295 1865 was fully revived. The City of Chicago in doing the work was liable for damages for negligence to the same extent contractors for huilding a railroad, or making any other pub- 18;3l lie or private improveiiieiits, are liable, and to no greater ex- tent, and that, as we understand them, is the only question de- cided in those cases. X. THE DEEP CUT. Our opponents had made a point on the fact that the deep cut so-called from Chicago to Lockport, which had been com- menced by the state in 1836, according to the original plan, was completed in 1871 hy the City of Chicago, the admitted object (33) of her undertaking being simply to perfect her drainage as a sanitary measure. We replied that in our view the par- ticular causes which led to the resumption and completion of the work on its original plan, cut no figure in the case. The result was precisely the same as if the state had herself gone on and consummated the work, instead of being driven to a change of plan in 1845. If the state had done it, the effect on Chicago drainage would have been precisely the same, and doubtless this incidental benefit was not lost sight of in forming the original plan. But we pray the court to look again and see if this consideration is a factor of any possible importance in the problem. The point is, was this channel through the rock carved out for six feet below the sur- face of Lake Michigan a part of the canal under the juris- 6296 diction of the Commissioners, precisely like every other part, from terminus to terminus? Does the character of the water that flows through it differ in the least, so far as con- cerns the right of the state to control it, from that on any other level? If so, we have yet to be informed in what par- ticular. Take it at the point of discharge at Lockport. Does the circumstance that in its flow from the Chicago Eiver to that point it incidentally takes along the filth of that city, affect in any way whatever the rights of the state in its future direction and disposition? When it reaches Lockport is it in any different legal predicament than if the work had been done by the state in 1848? Are not the physical agencies ]:>roducing the result the same? Does or did the municipal government of Chicago exercise the least jurisdiction over this part of the canal, either jointly with or exclusively of the Commissioners? Even before the cost of the work was re- funded to the city in 1871, could the city authorities have in- terfered (34) in managing or regulating the water on the Summit Level in 1852 Pet. for Rehearing^ Sup. Ct. — Druleg vs. Adams. — Con. any event? If not, as clearly they could not, if every legal right to be predicated of the water when it leaves the Hy- draulic Basin at Lockport, and all the authority and juris- diction of the state over it with reference to any future use 6297 are exactly the same in the one case as in the other, we ask, again, of what significance is the peculiar history of the im- provement? Suppose it to be true, wdiich is not true, that in the x\ct of 1865 the General Assembly had no thought of the immense additional water power which the Deep Cut would furnish, what of that? Is this court prepared to say, in order to confirm an enormous monopoly in the hands of the appel- lee, that if the Canal Commissioners, the stewards of this great public trust, found that they could add thousands of dollars to the revenue of the canal, by creating hydraulic priv- ileges at points of fall well fitted for such use, it was not their bounden duty to do so? And will it be said that it is not uni- versally the policy of canal management to create water power wherever it can be done? But in point of fact, the engineer who planned the work in 1836 had his eye constantly and intently on this important source of income for the support of the canal. Every canal report will prove this. What means the costly hydraulic basin at Lockport? and what mean the hydraulic structure at dam No. 1 in Joliet, where Hyde’s mill is situated, and the structure of similar design at dam No. 2 in Joliet? If, in the original plan and construction of the canal, the utilization of water power at Joliet was as much contem- 6298 plated and provided for as at Lockport, how can it be said that when the water is once discharged from Norton’s tail race its legitimate use for water-power purposes was ex- hausted? (35) Was it not considered that the same water used at Lockport at the first fall would reappear in the canal at Joliet at the second fall, and still again reappear at the third fall, and under like conditions for use for manufacturing purposes? And is not the whole plan of the canal to be comprehended in one view as a unit?- We pray the court to review its conclusions upon this branch of the case. We respectfully ask it to refer again to the arguments we had the honor to present at the hearing. We ask it in behalf of the great public interest struggling against a most odious monopoly in the hands of an individual who sup- ports his pretensions without one single meritorious consid- eration to commend them to favor to look again at the case and see if, after all, the theory set up on behalf of the appel- lant was not substantially correct. To sum up, waiting other matters ruled against us and which we do not deem essen- 1853 tial, we ask Your Honors to reconsider the opinion filed in this cause upon the following points : 1. Can the Havens release, by any construction be held 6299 to import a claim of right against the state to any water ad- ded by artificial means to the natural and immemorial flow of the Desplaines Eiver by the state? 2. Do not the reports of the court in 5th Gilman and 11th II]., supra, sufficiently demonstrate that no such claim was ever made in the whole course of the litigation? 3. If made, can a contract in relation to such claim in 1853 be construed as contemplating and embracing the state of things which ensued upon a total revolution of the system of supply in 1871, a revolution altogether superseding the use of the Desplaines Elver as a feeder, and really making the canal a most copious feeder to the river? (36) 4. Again, upon the supposition that the Havens in their release and grant did intend to assert, but without express- ing it in terms, such a claim is the state now estopped from contesting it by reason of the fact of accepting the grant, provided it does not appear that the claim was made mani- fest in any condition annexed to the grant, and was never otherwise recognized by the trustee or since 1865 by the Canal Commissioners ? 5. Could the Canal Trustees in 1853 bind the state per- petually by a contract, the operation of which would de- pend upon a future change in the plan of the canal ? 6. If the appellee receives now twice the amount of water 6300 he received before 1871, is it a diversion on the part of the state of which he can complain to take out above his dam the remainder of the surplus water which she herself has brought down from Lake Michigan by the deep cut improvement? 7. It is not settled by an overwhelming weight of author- ty that an upper riparian proprietor on a natural water course is only bound to deliver to the one below the natural and ordinary flow which he has received from the one above ; and, as corollary to this, that if he adds to the stream from an independent source or reservoir of his own, he may again deduct it or an equivalent quantity? 8. Is not the Summit Level a part of the canal, altogether undistinguished from the rest in every respect, so far as concerns the jurisdiction of the State over it and her legal right to dispose of the water after it shall have reached the point of discharge at Lockport? At least is not this so since the lien of Chicago for the cost was released in 1871? 9. If, from necessities growing out of the plan of the ca- 1854 Pet. for Rehearing , Sup. Ct. — Driiley vs. Adam. — Con. (37) nal, it happens to be convenient or necessary on an upper level to discharge the surplus water accumulating there intv» a lower level through a connecting channel exterior to the canal, is the right of the State lost in consequence of that process of transmission any more than it would be if she was sole owner of such exterior channel? 6301 10. If at any point on the line of the canal the local condi- tions for producing water-power happen to exist, is the right of the State extingmished by non user during any lapse of time ; or, in the present case, was the right of the State to make the lease in question to Slater & Druly forfeited by the delay of seven years, 1871-8, in making this new use of this new surplus derived through the deep cut ? 11. Was the appellee, being as the record shows, riparian owner only on the east bank of the stream, entitled in any event to more than nominal damages? Trustees v. Havens, 11 111., 154. 12. Did not the admitted jurisdiction of the State over the Desplaines Eiver as a feeder include and imply the right to employ the canal as a medium for conveying the surplus water in question? Eespectfully submitted, G. D. A. Pakks and E. F. Bull, Attorneys for Petitioner. Defendant's Mortgage Exhibit. (App. II, p. 3906, referred to C. E., p. 3489; Trans., p. 5323; Abst., p. 1613.) 6302 A printed copy of a mortgage by the Economy Light k Power Company to the Eoyal Trust Company, dated Decem- ber 1, 1906, securing an issue of $3,000,000 of bonds. 1854ci Economy Light & Power Company to Ivoyal Trust Company. Trust J)eed dated De- cember 1, 1906. Pecorded Consideration, $L0(). Property (^onveyed: — twenty-two ( 2 ' 2 ) city lots in North Joliet, the Dam No. 1 Lease; the lands situated in various sections in Township thirty- four (34) north, Eange nine (9), Will County; the full and free use, benefit and enjoyment of a certain stream of water called the Des Plaines Piver, flowing through certain lands, as it may he necessary for said Economy Light & Power Company, its successors and assigns to take, flow, injure or damage, in order to utilize the fall in said river ; and also certain other lands situated in Township thirty- five (35) north, Pange ten (10), AVill County; the contract between Harold E. Griswold and the con- servator of the Estate of Harvey Glidden, the Griswold lease from the Canal Commissioners, dated September 2, 1904 ; the agreement between Harold F. Griswold and Peter Con- roy ; the pole line contract of the Canal Commissioners dated September 2, 1904; the Kankakee Feeder lease between Canal Commissioners and Charles A. Afunroe, dated January 5, 1905, and all other contracts assigned by Harold E. Griswold and Charles A. Munroe to the Economy Light & Power Company. Secures an issue of 3.000 First Mortgage 5 per cent. Bonds of $1,000 each of said Economy Tjight & Power Company aggregating in amount $3,000,000, said bonds being dated De- cember 1, 1906, and payable December 1, 1956. 1854b Article 6. 790 bonds to be issued to retire foi’mer bonds and bonds No. 791 to 2,000, inclusive, to be delivered to Trus- tee for certification and proceeds to be used to pay $138,000 of floating debt and $274,000 to be used for purchase of lands, flowage rights and contract rights and other property, and the remainder of the proceeds of said 1,210 bonds so far as neces- sary to be used to pay the cost of constructing dam, Tvater power works, etc., and balance to be held for future sale. 1855 6337 Illinois & Michigan Canal Commissioners' Report of 1900 Embracing a Documentary History of the Illinois & Michigan Canal. (App. II, p. 3907, ]*eferred to C. E., ]). 3706; Trans., ]). 5541; Abst., p. 1702.) This report by the Canal Commissioners is a printed vol- ume of 273 pages. (The Desplaines River. Data From the ‘^Documentary History of the Illinois and Michigan Canal" Published in the Canal Commissioners' Report for 1900. pp. 60-268. Route of Canal.) Eroin report of J. M. Bneklin, Dee. 18-1830. 6376 “Prom the month of the Chicago river to the ])oint fixed upon as the entrance of the canal, there is no obstruction whatever to its navigation by boats drawing under five feet for that distance, which is five miles, this river forms a perfect natural canal, its banks being low and of uniform heights and its waters supplied bv the Lake." (Can. Com. Rep., 1900, p. 73.) “Leaving the river at the point above mentioned, the line of the canal inclines towards the Regula (as wull be seem by a reference to the accompanying map) and follows along the margin of the Portage lake until it strikes the river Des Plaines at the ford, a distance of nine miles; the excavation throughout this distance will pass through a hard ferruginous clay (as has been ascertained by borings) at an average depth of 15.41 feet. From the ford of the Des Plaines to the Ausoganashkee swamp, the line runs through the valley of the J)es Plaines river, at an average elevation of 16.27 feet above the bottom of the canal. On this part of the route, which is nine miles in length, the excavation to the depth of 6.27 feet is good consisting of sand and clay, but the remaining ten feet composes almost a continuous map of limestone extending with little intermission from the ford of the Des Plaines to the end of the line surveyed, it is probably of the same char- acter as that in the bed of the river, the upjier strata only of which appear to be detached." (Can. Com. Rep., 1900, p. 73.) “The Ausoganashkee or Reed swamp does not present any insurmountable obstacles to the passage of the canal through it, although with the lake as a feeder, it must necessarily be attended with great expense. The canal is located immediately 1856 Extract, — Canal Com. Rep. 1900. Continued. across its mouth, which is half a mile in breadth, the depth 6376a of the excavation rendering it expedient to select the most direct route. The surface of this swamp is 15.86 feet above the bottom of the canal, 9.80 feet above the level of Lake Mich- igan and 2.30 feet above the river Des Plaines at its low stage, the excavations through it will consist of 5^ feet of mud and earth and 10.36 feet of rock.” (Can. Com. Rep., 1900, p. 74.) ^‘To carry the canal entirely through the deep cut which terminates about six miles below the Ausoganashkee will prob- ably increase the above amount to two millions and a half, the great expense of time and money thus necessarily incurred in making a feeder of the lake renders it desirable to use for that purpose some stream by which tlie summit level can be better adapted to the elevation of the ground on the line of the canal. The river Des Plaines when low affords a very inconsiderable quantity of water, but the Calamic river which empties into Lake Michigan about twelve miles south of Chicago, furnishes an abundant supply (320,000 cubic feet per hour) and is in every respect, so far as my observation extends, advantageously situated as a feeder. Too much time was necessarily consumed in the survey on the line of the canal to admit of as particular an examination of this river as from the facts collected respecting it, it undoubtedly de- serves.” (Can. Com. Rep., p. 74.) ‘Mt is evident from the nature of the ground as well as from the representations of the inhabitants of the country, that there is in times of high water, a communication between the rivers Des Plaines and Calamic, through the valleys of the Ausoganashkee swamp and Stoney creek-, as neither of these rivers rise more than ten or twelve feet, and as there is no perceptible current between them when both are up, it is reasonable to conclude that the intermediate ground is low enough to admit of the waters of the Calamic being brought into tlie valley of the Des Plaines at a small expense, jorovided a dam can be made in the former at a sufficient elevation to give the feeder its proper descent.” The Sectiox or Lands LTnder the IT. S. Land Grant. From Report of Roberts, Jayne and Dunn, Canal Commis- sioners. December 27, 1830. 6377a ^‘Tlie commissioners selected each alternate section hav- ing an odd number, commencing with township Xo. 32 north range Xo. 1 east of the third principal meridian, within five 1857 miles of each side of the canal, making in all four hundred and ninety sections.” (Can. Com. Eep., 1900, p. 76.) Platting of Chicago, Its Commercial Importance. 6378 ‘'That means might be realized as early as possible to commence the work of excavation, the commissioners deter- mined to bring into market the remaining canal lands, on the 27th day of September at Chicago, and on the 4th day of October following at the rapids of the Illinois river. In the meantime they laid off into town lots part of section 9, T. No. 39 N., K. 14 E., lying on the Chicago river near Lake Michigan, and part of section No. 11, T. 33, N., E. No. 3 E. situated at the mouth of Fox river on the Illinois.” (Can. Com. Eep., 1900, p. 77.) “A portion of these lots were with the remaining canal lands (except fractional section 15, T. 39 N., E. 14 E.) after public notice given, offered for sale at the times and places specified. The report of the Treasurer before referred to, em- braces a satisfactory and detailed account of these sales. The sales of lots in the town of Chicago on section 9, T. 39 N., Eange 14 E., amounted to about $4,363 and were so flattering as to inspire the Commissioners with a confident hope that the remaining lots, say about three-fourths, would with proper care and management, yield a very handsome increase to the canal fund. This town is situated on the Chicago river near its mouth and possesses many advantages, natural and ad- vantitous. It is the only eligible site for a town on the lake shore within the limits of Illinois surrounded by a beautiful, champaigne fertile country, surpassed by none in the richness of its products and from the long experience of its inhabitants is decidedly healthy. (Can. Com. Eep., 1900, p. 77.) Its prominence in a commercial point of view has already prompted merchants from the northeastern part of the State and northwestern part of Indiana to take their produce to Chicago, ship for Detroit, Buffalo and New York and return by the same route, as the safest and cheapest. Saving on the transportation of goods 1.25 per hundred weight and per- forming the trip ten days sooner, than by either of the other channels, through which merchandise is brought into these sections of the two States. The circumstance of Chicago being located at the head of the contemplated canal will make it the future depot of all the surplus products of the coun- try on the Illinois river and its tributaries. These advaii* tages point out its importance and at once elicit the foster- ing care of the Legislature of this State. Nothing would con- 1858 Extract, — Canal Com. Rep. 1900. — Continued. . V duce more to the prosperity of this place than the construction of a safe harbor at the month of the Chicago river.” (Can. Com. Eep., 1900, p. 77.) 5Vater Supply of Rivers. The Deep Cut axd Shallow Cut. 6378a Cost of Caxal. ‘‘From the estimate embraced in the engineer’s report, it will be discovered that the cost of construction of that part of the canal, included within the points mentioned, will exceed one million and a half of dollars. This estimate is founded on the presumption that the water required, say four and a half feet in depth, is to be supplied from the Lake; and that the dimensions of the canal are twenty-six feet in width at liottom, with a slope on the sides (in earth) of one foot and three-quarters base to every foot perpendicular rise. The law on this subject has prescribed that the dimensions of the canal shall be as follows: “At least forty feet in width at the summit water line, twenty-eight feet wide at the bottom and of sufficient depth to contain at least four feet water.” The difference in the dimensions assumed by the engineer, for the purposes of calculation, and those prescribed by law, is so slight that the estimate predicted on the first may be safely relied on as appreciable to the latter.” (Can. Com. Rep., 1900, p. 78.) “The great expense of construction that must be incurred on the plan of using the waters of the lake to supply the sum- mit level induced the commissioners to make such examina- tion and inquiries as time permitted into the practicability of procuring a sufficient supply of water from some other source, that would raise the summit level sufficiently high to avoid rock excavation. It is believed that the river Calamic which emptied into the Lake about twelve miles south of Chicago, furnishes an abundant supply of water (320,000 c. feet per hour) and is in other respects advantageously situated for the purpose. Too much time was necessarily consumed on the canal line to admit of a particular examination of this river during last fall, but the information communicated by the engineer in his report and such observations as the Com- missioners have been able to make, convince them of the prac- ticability of the plan of using the Calamic as a feeder.” (Can. Com. Rep., 1900, p. 78.) “When we reflect that the cost of constructing the first eighteen and a half miles of the canal, will not, on this plan exceed $160,000 and that on the other it will amount to more 1859 than a million and a half, the reason in favor of using the waters of the Calainic will appear too obvious to require com- ment. The report of the engineer is referred to for more satisfactorv information on this subject.” (Can. Com. Rep., 1900, p. 78.) Railroad vs. Canal. Act of 1831, Section 2. 6381 ‘‘It shall be the duty of the superintending commissioner, to cause the engineer employed by him, to ascertain as early in the spring as the weather will permit, whether the Calamic will be a sufficient feeder for the part of the canal between Chicago and Des Plaines river, “or whether the construction of a railroad is not preferable, or will be of more public utility than a canal.” And if the commissioners shall seem satisfied of sufficiency of said river, and that a canal will be of more public utility than a railroad, it shall be their duty to com- mence the excavations without delay. And if they should be of opinion that it would not, all further proceedings in rela- tion to said canal and sales of land, shall be deferred until the next meeting of the Legislature.” (Can. Com. Rep., 1900, p. 83.) From Report of Acting Commissioner Dunn. 6382 “The engineer is of the opinion that ‘the facts elicited by the examination of the route of the proposed canal are un- favorable to the practicability of its safe and economical 6382a construction.’ But represents that the route examined for a railway was found extremely favorable for the adop- tion of that sort of improvement. These statements of the engineer but confirm a conviction that I had for some time labored under.” (Can. Com. Rep., 1900, p. 85-86.) From Report of Canal Commissioners. Railroad vs. Canal. “They regret that it is not in their power to make a report in detail. This cannot be looked for from them until they have all the means which the isubject is susceptible of furnishing, necessary to 'satisfy the expectations of the pubilc. They deem it a sufficient reason to say that the engineer in their employ- ment has been constantly and indefatigably engaged in the execution of the work for nearly seven months past, notwith- standing the season were exceedingly unpropitious. But their 1860 Extract, — Canal Com. Rep. 1900. — Continued. convictions justify them in stating that the work has been exe- cuted with great pains and fidelity and which they think, mer- its, in reference to its accuracy, the confidence of the coun- try.’’ (Can. Com. Eep., 1900, p. 86.) ‘‘It would be premature in the undersigned to say un- qualifiedly that either one of the improvements contemplated should be preferred to the other, without the aid they would derive from the estimates of the cost. But from the con- victions that at present influence them, they cannot hesitate to say that a railway on the route referred to, is decidedly preferable to a canal.” (Can. Com. Eep., 1900, p. 86.) “The maps, profiles and estimates of a railway and cana] will be made out by Mr. Bucklin without delay, hut which will necessarily, however, occupy some time to enable him to ac- complish this part of his labor. But we state it as our pres- ent convictions, undecided by his report, that unless there are some facts hereafter presented (which we do not now antici- pate) we should feel it our duty to recommend to the Leg- islature the adoption of a railway in preference to a canal.” (Can. Com. Eep., 1900, p. 86.) Water Supply 6383a From Eeport or J. M. Bucklix, Engineer, Jan. 1, 1833. “The discharge of the Calamic river in the fall of 1830, a season of extreme drouth, amounted to 320,000 cubic feet per hour, which may be safely relied upon as its minimum dis- charge. This quantity was considered sufficient for the upper portion of the canal, hut by the late survey the length of canal to be supplied from the summit until relieved by the river Du Page proving to be much greater than was antici- pated, an additional supply of 102,400 cubic feet per hour will he required for its consumption. The river Des Plaines in most seasons would alone make up the deficiency, but in the fall of 1830 its discharge was at one period reduced to 60,000 feet per hour. Eelying upon its contributing this quantity of water in the dryest seasons, there will still remain a de- ficiency of 42,400 cubic feet for which there is no resource hut the establishment of an artificial reservoir on the Summit Level. The Ausoganashkee swamp presents great advan- tages for this purpose, as it receives the drainage of the coun- try to a great extent, and is susceptible at a comparatively small expense, of being rendered more secure from breaches and other casualties than most works of a similar descrip- tion. It will form an area of 1,194 acres, cajiable of being filled to the average depth of ten feet and of containing a body of water more than adequate after the deduction of a 18G1 large allowance for evaporation and leakage to all demands made upon it by the above mentioned deficiency. (Can. Com. Kep., 1900, p. 88.) ‘‘Discharge of the Des Plaines river per hour in cubic feet 60,000.’’ 6384 ‘'The entire length of the canal being 92.75 miles there will then remain 56.25 miles to be supplied from other sources. Forty-one miles of this distance will devolve upon the river Du Page and the remainder upon Fox Kiver. The river Du Page or Tokoquenonc empties into the river Des Plaines 3.67 miles above its junction with the Kankakee. By an imperfect and hasty measurement of the Du Page in the fall of 1830, its minimum discharge was estimated at 415,000 cubic feet per hour, the succeeding summer and fall being remarkably wet, did not afford an opportunity of ascertain- ing its discharge at a low stage, but it is obvious to the ob- server of both streams, that its discharge must, at all times, be greater than that of the Calamic. We may rely upon its capacity to furnish the same quantity of water, that is, 320,000 cubic feet per hour, from which deduct 246,000 cubic feet, the quantity required for evaporation and leakage in forty-one miles of canal at 6,000 cubic feet per hour for every mile, and there will remain a surplus of 74,000 cubic feet per hour, which being insufficient for the consumption of the re- maining 15.25 miles, the waters of Fox river can be brought into requisition to supply the deficiency. As far as the results of experience can be applied in calculating the quantity of water expended by a canal located on ground of ordinary per- meability, an ample supply of water is thus provided for the whole route. Nevertheless it must be acknowledged that in the upper levels where from the scarcity of water it is most im- portant to restrict the loss of water within the usual limits, the canal passes through so rocky and porous a section of coun- try that it is impossible to anticipate what may be the extent of the leakage or how far the precautions ordinarily adopted may succeed in enabling the canal to retain the water.” (Can. Com. Eep., 1900, p. 89.) Eailw^ay and Caxal IX Des Plaixes Valley. “Eesuming the survey of 1830, at the Ausoganashkee swamp the line of the late survey continues in the southeast valley of the river Des Plaines until within half a mile of Hickory Creek, it then crosses the river and encroaching upon its bed for a short distance to avoid rock excavation, is conducted by means of a narrow valley to Mount Joliet, where it falls in with the line of railway and terminates the second division. 1862 Extract, — Canal Com. Rep. 1900. — Continued. a distance of 19.75 miles. The rock excavation which forms a large item in the cost of this division, is occasioned hy the gradual rise of the rock on the smmnit level, and the difficulty in procuring earth for embankment on the lower levels, which in some instances renders a depression of the level and the consequent excavation of the rock more advan- tageous than a continuation of the level and the substitution 6384a of embankment, although under the circumstances it would be preferable. The broad valley of this singular stream in places where it has much descent seems in its whole extent (far beyond the present rise of its waters) to have been swept hare of everything that was not sufficiently ponderous to resist the effects of a violent current. In these situations with the exception of occasional mounds of gravel, materials for em- banlmient cannot be found within a distance that would justify their use except in a case of absolute necessity. Besides the expense accruing from these causes, the cost of keeping this part of the canal in repair after it is finished, must be neces- sarily great on account of the immense deposits of earth and the breaches to which it will be annually subjected by the numerous small streams which intersect the route and must be received into the canal as they cannot be passed under it or disposed of in any other way. The whole line is more or less exposed to this defect, hut it is of more frequent occurrence in this division than in any other part of it. It is here that the rocky district of the country before alluded to, as exciting so much apprehension respecting its probable effect in exhausting the supply of water is situated. (Can. Com. Rep., 1900, p. 90.) ‘‘The third division which is included between Mount Joliet and the river Au Sable (a distance of 15.234 miles) affords a ])etter location than the preceding. MTth the valley of the Des Plaines it pursues on very favorable ground, a south- erly course from Mount Joliet to the river Du Page which it crosses some distance above its mouth, receiving a feeder from it on the north side. Beyond this point, the bluffs, just al)ove the confluence of the Kankakee and Des Plaines rivers oppose serious obstacles to the construction of an economical and permanent work. On this section of the division the level is unavoidably too low to admit of the passage of many of the small streams under the canal by which means and the drain- age from the hills, it will be subject to the same inconveniences and danger in wet seasons to which the division above is ex- ])osed. The soil also from being mixed with sand adheres to- gether very slightly and when saturated with water lias a great tendency to slip over where the inclination of the hill is moderate. Considerable embarrassment to the navigation 1863 of the canal may l)e expected from this cause l)esides the expense of repairs.’^ (Can. Com. Rep., 1900, p. 90.) Deep Cut Plan Rock Excavation Use of Des Plaines. 6385 ‘‘In making a feeder of Lake Michigan, by cutting through the dividing ridge between the lake and the head waters of the Illinois river the location of the canal is the same through- out as the foregoing, it being important in both plans to choose the lowest ground for the Summit Level, the arrange- ment of the lower levels being governed by the same indi- cations in each. In the survey of 1830 of the upper part of the route, assuming the bottom of the canal at the head of the Chicago river, to be four and one-half feet below the level of the lake, no rock excavation is encountered until the • line strikes the river Des Plaines, where it was ascertained by the boring to average about ten feet and the earth ex- cavation about six feet in depth throughout the remaining dis- tance of nine miles. By the late survey, beyond the Auso- ganashkee Swamp, the rock excavation was found to increase in depth for several miles, on account of the greater eleva- tions of the rock which I have before had occasion to advert to in describing the location of the second division. The divisions of the route upon this plan, are the same as in the former, of which first and second division it will be observed by referring to the estimates, are liable to any increase in the cost of construction, arising from the difference of plan, yet this increase amounts to upwards of two millions and a half, a fact that may be thought sufficient of itself to put the execution of the work on this plan entirely out of the cpuestion. Still it may not be superfluous to remark that al- though in the estimate of the probable cost of the work, a liberal price is allowed for the rock excavation, the most important item; besides a sum amply sufficient to cover the ordinary contingent expenses, yet it is hardly possible to an- ticipate the limits of the expenditure when we consider that the bulk of the rock excavation lies below the rocky bed of the river Des Plaines and the interruption that the work wdll consequently be liable to from the water of the river finding its way through the numerous fissures of the rock into the canal.” (Can. Com. Rep., 1900, p. 91.) 1864 Extract, — Canal Com. Rep. 1900. — Continued. Des Plaines Kivek — Why Not Used eok Canal — Eailroad Pkefekeed. ''It lias been also proposed to effect a water communica- tion between the Lake and the Illinois river by means of dams and locks in the river Des Plaines, forming a still water nav- igation, knowing the minimum discharge of this river, the im- practicability of the scheme is so evident that the subject 6385a is here noticed more as a matter of form, than with any ex- pectation of rendering it clearer. It will be recollected that the quantity of water provided for the passage of 96 boats over the Summit Level every 24 hours in the eanal, is 86,400 cubic feet per hour, that is one lock chamber full of water every 15 minutes, ascending and descending.’’ (Can. Com. Rep., 1900, p. 92.) "The minimum discharge of the river Des Plaines, is only 60,000 cubic feet per hour. Of course, it is not competent to supply even the lockage (which on this plan cannot be less than that required for the canal) without taking into con- sideration the loss by evaporation and leakage, which would alone consume at least seven times the quantity of water discharged by the river Des Plaines at its lowest stage.” (Can. Com. Rep., 1900, p. 92.) Any Water Communication Whatever Thought Impractic- able. "In the rocky and cavernous district of country to which the location of the great part of the route of the canal is confined, there are too many difficulties to be reasonably ap- prehended in carrying it into successful operation, to justify the establishment of a water communication on any route or plan whatever, while however, so many obstacles are opposed to the construction of a canal, the examination of the route for a railway was very successful in developing its great ad- vantages for the adoption of that species of improvement. The The line of the canal commencing at the Chicago river and occupying the south bank of the river Des Plaines, being of very exceptional character for a railway, and the inclination of the grades of the later admitting of greater latitude in its location, the route for a railroad was commenced at the junction of the north and south forks of the Chicago river in the town of Chicago on Lake Michigan, and from thence run in a sight line through a level open prairie, north of the Portage Lake to the upper ford of the river Des Plaines, commonly called Laughton’s ford, a distance of ten miles from Chicago; it crosses the river at this point which is advan- 1865 tageously situated for that purpose, and pursues the north- west valley of the river Des Plaines until it forms a junction with the line run for a canal, a short distance below a re- markable natural mound called Mount Joliet, 38.258 miles from Chicago. This distance includes the 1st and 2nd di- visions of the line of the railway, the remaining part of the route (57.742 miles) corresponds in the limits of its division with those of the canal, although the location is not entirely the same, the inclinations of the railway frequently allowing a better selection of ground than that to which the levels of the canal are confined.’^ (Can. Com. Rep., 1900, p. 92.) ^^The graduation of the first ten miles through the Chicago prairie, generally conforms to the surface of the ground which varies in its inclination from 2 to 13 feet to the mile. The want of stone and timber which exists on this part of the line can in a great measure be obviated by commencing the construction of the railway at the river Des Plaines, where these materials can be obtained in abundance, stone of a very good quality. The estimates of the probable cost of this sec- tion of the 1st division are founded upon the adoption of this expedient for lessening the cost of the transportation of materials. Beyond the river Des Plaines, the 1st division extends to Flag Creek which empties into it 9.618 miles below the upper ford. The ground upon which this part of the line is located, is generally very level, the graduation which does not require much excavation or embankment, not exceeding 13 feet to the mile. Curves are, however, frequent, but not very abrupt, the minimum radius of curvature being 955 feet. Materials are found in sufficient quantity in the vicinity of the line.’^ (Can. Com. Rep., p. 92.) ‘^Crossing the above mentioned creek obliquely about a mile and a half above its mouth, the line of the railway descends the valley of the creek to that of the river Des Plaines, where it continues its course until it strikes a succession of swamps, occup 3 fing the whole breadth of the valley of the river and running nearly to the top of the bluff. They are about two miles in extent, but from the favorable circum- stance of their being generally shallow with a rock foundation, no great difficulty of expense is anticipated in passing them by an embankment. The line as first run, in order to avoid them as much as possible and to obtain firm ground, ascends the side of the bluff which involves the necessiD^ of a gradua- tion of 24 and 31 feet to the mile, but as the survey of the entire line has developed the fact that 20 feet to the mile may be considered the maximum rate of graduation on eveiw other part of the route it becomes necessary even at a great increase of cost to equalize the graduation at this point. For whatever propelling power is used on the road it 1866 Extract, — Canal Com. Rep. 1900. — Continued. will, of course, be calculated to overcome the greatest resist- ance to be met with on any part of the road, consequently it is of great importance to avoid the necessity of providing a propelling power to overcome an ascent of 31 feet to the mile at one point only, while on no other part of the route a greater power is required than that necessary for an ascent of 20 feet to the mile.’^ (Can. Com. Eep., p. 93.) 6387 “In reviewing the capabilities of the country between Chi- cago and the foot of the rapids of the Illinois river for the construction of a canal or railroad, it would seem (laying aside the great difference of expense) that the obstacles opposed by nature to the formation of a good canal on any route or plan whatever, are such that nothing could justify the un- dertaking, but the fact of its being the only means of attaining the accomplishment of so important an object as the improve ment of the communication between the above mentioned points. For this reason the unparalleled advantages present- ed on the route of the railway for the construction of a very perfect and prominent work, are invested with additional value in inviting the adoption of an alternative, the ultimate success of which is warranted by experience in the successful opera- tion of many similar works both in Europe and the United States, none of which can compete with it in economy of con- struction or perfection when finished.” (Can. Com. Eep., 1900, p. 95.) Effects of the Eaiekoad Scheme Caxal Commissioners Abolished Memorial to Congress by State Legislature 6391a An Act to Abolish the Office of Canal Commissioners. Approved March 1, 1833. “The General Assembly of the State of Illinois in session December 20th, 1832, adopted the following memorial: “To the Honorable, the Senate and House of Eepresentatives of the United States in Congress Assembled: “The memorial of the General Assembly of the State of Illinois, respectfully represents, that by “An act entitled an act to grant a quantity of land to the State of Illinois for the purpose of aiding in opening a canal to connect the waters of the Illinois river with those of Lake Michigan, approved March 2d, 1827,” Congress has granted to this State a quan- tity of land, on the line of the proposed canal, to assist in th(‘ accomplishment of the work. Since the ])assage of this law. the State has caused the route to be surveyed, and the cost of the work to be estimated, from which it appears that the 1867 expense will greatly exceed the amount originally contemplat- ed ; that a railroad or turn-pike will he, upon the whole, more useful and less expensive, and can be accomplished in much less time. Nevertheless, the act of Congress limits the dona- tion to the purpose of making a canal so as to restrict the Legislature from making any other application of it. Your memorialists therefore pray your honorable body to pass an act enabling this State to apply this donation to a turnpike, railroad or canal, as either of them shall be found to be most advantageous or convenient.” (Can. Com. Rep., 1900, p. 104.) From Act of Congress Approved March 2, 1833. ‘‘Provided, That if a railroad is made in place of a canal, 6392 the State of Illinois shall be subject to the same duties and obligations, and the government of the LTnited States shall be entitled to, and have the same privileges on said railroad, which they would have had through the canal, if it had been opened.” (Can. Com. Rep., 1900, p. 105.) “Approved March 2, 1833.” “In January, 1835, the General Assembly of Illinois passed an act entitled “An act for the construction of the Illinois and Michigan Canal.” Under this act Governor Joseph Duncan nominated Edward Coles, president; Gurdon S. Aubhard, Joel Manning, William Linn, and William B. Archer, commission- ers, who were duly confirmed as the Board of Canal Commis- sioners. This act, however, proved defective in so many par- ticulars that nothing was accomplished l)y this commission.” (Can. Com. Rep., 1900, p. 105.) “From 1831 to 1835 a strong effort was made to secure the construction of a railroad instead of a canal. This effort, however, while it was advocated by many of the leading men of the State, met with little encouragement from the people.” (Can. Com. Rep., 1900, p. 105.) “The Congressional acts of 1827 and 1833 extended the time limit for commencing the canal to 1837 and for its completion to 1852, it being apparent at this time that prompt measures must be taken for the commencement of the canal or the rights under the act of 1822 and 1827 be lost and the land grant of 1827 thereby revert to the general government ; that the Governor of Illinois by proclamation convened the General Assembly in special session December 7, 1835. 1868 Extract, — Canal Com. Rep. 1900. — Continued. A Continuous Canal as Against Short Canals and River Improvement. 6394 ‘‘Cliicago, June 23, 1836. To the Honorable, The Canal Commissioners of the State of Illinois. Gentlemen : — At a meeting of the citizens of the town of Ottawa the un- dersigned were appointed a committee to address a note to your board to ascertain whether it is contemplated by you to cause a survey of the Illinois river or any part of it to be made, in order that estimates may he made with a view to its ultimate improvement for slack water navigation.” (Can. Com. Rep., 1900, p. 109.) President to Citizens of Ottawa. Canal Office, Chicago, July 11, 1836. Committee of the Citizens of Ottawa. Gentlemen : — Your communication of the 23d ult., was laid before the hoard of canal commissioners at their first full session, after the receipt of it, and I hasten to apprise you of the result. You inquire ^whether it is contemplated by the board to cause a survey of the Illinois river, or any jiart of it, to be made with a view of its ultimate improvement for slack water navigation,’ and we presume that you allude more es- pecially to that part of the river lying between Ottawa and the western boundary of the canal lands.” ‘^By reference to the 44th section of the act for the con- struction of the Illinois and Michigan canal approved the 9th of January, 1836, it will he seen that the Legislature have ordered the canal to terminate ‘‘at or near the mouth of the Little Vermillion river, in Lasalle country, and on lands owned by the State.” “When this act was passed, the question was not new, whether a continuation of the canal or an improvement of the river below Ottawa by lock and dam was most advantageous to the general interest. The Legislature had accumulated a large fund of information in order to judge of the compara- tive advantages and disadvantages of each plan, both in relation to the safety and stability of navigation, and to the increased revenue derivable from State property by termi- nating the canal as low down the river as was contemplated in the grant of lands from the Government of the United States. Nor can it be doubted that the tenor of that grant had some influence on the decision.” (Can. Com. Rep., 1900, p. 109.) 1869 6394a ‘‘The commissi oners shall have i)ower, says the law, to cause an engineer to examine the Illinois Elver, from the mouth of Fox river, down to the head of steamboat navi- gation; and if, in their opinion the navigation of the Illinois can be improved by locks and dams, or otherwise, so as to secure its navigation as far upward as the mouth of Fox river, with as little expense and as much utility as cannal- ling from the Fox river to the Little Vermillion or the foot of the rapids, they shall have power to terminate said canal at mouth of Fox river.” In 1833, the same engineer re- ported that a comparatively good route could be obtained for the continuation of the canal from the mouth of Fox river to a place now known as Utica and that great difficulty and ex- pense would attend a further progress. In examining the rapids of the Illinois below the mouth of Fox river he says, “It was ascertained that the establishment of a still water navigation was the most certain and effectual method of improving them.” But in his zeal to demonstrate Vm periority of a railroad over either mode of Avater communi- cation, he admitted a steamboat canal around the rapids, “to be of too precarious a nature to be recommended with any degree of confidence in its ]Aermanency and usefulness.” He estimated an independent canal behveen Fox rUer and Utica at $580,000; and a still water navigation of the same distance at $200,000; and it is worthy of remark that not- withstanding this great disparity of cost necessarily en- hanced by the difficult country between Utica and the mouth of the Little Vermillion, the Legislature liaA^e thought proper to repeal the eight section, just cited, and to adhere to the first plan. In fact, they have presented the termini in lan- guage not to be misunderstood, Avhile they have given great latitude and almost everything else connected with the sub- ject, hence the commissioners deem themselves unauthorized at this time to cause a survey of the rapids of the Illinois river” “with a view of their ultimate improvement for slack water navigation;” nor would they be justified to any premed- itated suspension of that particular line for the sole purpose of bringing the matter again before the Legislature, unless ♦the engineers (who have recently ascertained that a safe canal and suitable termination are entirely practicable) should prove by their estimates that the cost will so far ex- ceed any previous calculations as to render it prudent, on the part of the commissioners, to report that fact to the Goa^- ernor and pause for additional legislation.” (Can. Com. Eep., 1900, p. 110.) 6395 “Taking this view of the subject, the commissioners can make no pledge “ ‘To cause any part of the river to be sur- veyed, with a view of slack water navigation,” except in the contingency before mentioned or, in the further one, of 1870 Extract, — Canal Com. Rep. 1900. — Continued. the Fox river feeder, and the division along the Eapids not being got under contract during the present season. Should either of those events take place, an accurate survey from Ottawa down will be made this fall when the water is low, and plans and estimates submitted to the Legislature.” (Can. Com. Eep., 1900, p. 111.) ‘‘In coming to this conclusion, the board of commission- ers are influenced, in the first case, by the consideration that if a continuous canal should be shown to be too costly for its benefits, a still water navigation will be the only alterna- tive; and in the second case, by their anxiety to do every- thing consistent with their duty, to promote the interest and gratify the wishes of the enterprising citizens of so import- ant a town as Ottawa. A point in which the State is deeply concerned and one which, in no event, can fail to arrive at im- mense consequence.” (Can. Com. Rep., 1900, p. 111.) “With great respect, gentlemen, I remain. Your obt. servt. W. F. Thornton, President Board Comms. I. and M. Canal. ^Messrs : Benj. H. Moore James Day Loring DeLano Benj. Harris Bartley Denison Win. E. Armstrong Geo. H. Norris David Lith Henry Green” (Can. Com. Rep., 1900, p. 111.) From Annual Report for 1836. The Enlarged Plan. 6396 “In the very threshold of their administration, the lioard were met by appalling difficulties, involving the highest of- ficial responsibility, and the most vital interests of the State. They soon became convinced that the magnitude of the under- taking had been miscomprehended both by the Legislature and the people. The largest estimate that had been previous- ly made was about four millions of dollars; and without re- garding the enlargement of the ])lan or the increased value of the means of execution, it was confidently asserted by many members of the Jjegislature and other citizens, whose opinions were entitled to weight, that even that estimate was far beyond the truth.” “The commissioners had just begun their iiKjuiries when they became satisfied that the four millions would l)e wholly 1871 inadequate; and before they had determined on any definite location, they saw that if the spirit of the law was adhered to, double that sum would be required. The seventeenth sec- tion of the act says that ‘‘the canal shall be supplied with water from Lake Michigan, and such other sources as the commissioners may think proper.’’ In other words. Lake Michigan must be a feeder; and consequently the water of the lake must be carried into the valley of the Des Plaines by a through cut, chiefly in stone, of eighteen feet deep, on an average and nearly thirty miles long. It was upon this plan that Mr. Bucklin made his four million estimate; but his canal was to be forty feet wide at the surface, twenty- eight feet base, and four feet deep; while the present law re- quires’ “not less than forty-five feet water surface, thirty feet base, and a sufficient depth to insure a navigation of four feet.” It is to be constructed, too, in the manner best calculated to promote the permanent interest of the coun- try, and a discretionary reservation is authorized on each margin with a view to future enlargement.” (Can. Com. Eep., 1900, p. 113.) “To the difficulty which this view of the subject presented, another was added which exercised a strong influence on the movements of the board. It was at first believed by men of experience, and countenanced by the engineer, that steam power would have been freely resorted to in order to divest the Summit level works from the water which might prob ably flow in through the fissures of the rocks; and that the necessity of such a resort would not only increase the expense of excavation, but deter contractors from making acceptable proposals. Under the circumstances, the board came to 6396a the conclusion that if it were practicable to obtain ample feeders from other sources than the lake, they would direct their operations for the present year to some other division of the work and call the attention of the Legislature to a change of plan. The Calumet and the Des Plaines having been ascertained to be insufficient, the upper region of the Fox Eiver, as the only remaining chance, was ordered to be examined; but after a brief, yet convincing investigation, the project was abandoned. A reference to the engineer’s report will afford all the particulars of the exploration. (Can. Com. Eep., 1900, p. II4.) “Nothing now remained but to go through the Summit level, or suspend the whole work. (Can. Com. Eep., 1900, p. II4.) “The next question to be decided was the size of the canal. After mature deliberation the board determined to adopt the recommendation of the chief engineer, and construct it of the following dimensions, to-wit: Sixty feet wide at the top water line, thirty-six feet wide at the bottom and six feet 1872 Extract, — Canal Com. Rep. 1900. — Continued. deep. The fluctuation, or irregular tides, in the lake, occa- sioned by the action of high winds rendered the depth agreed upon indispensably necessary to insure a navigation of at least four feet, and the commissioners were decidedly and unanimously of the opinion that the adopted width was that “best calculated to promote the permanent interest of the country. ’ ’ ***** “There is no avoiding the stupendous cost through the Summit Level. Water must be drawn from Lake Michigan and that water will be of great value, as well for the improve- ment of the river navigation as for hydraulic purposes. The greater size of the canal will facilitate the passage of canal boats, overcome their burden and cheapen freights. It must have, too, a beneficial etfect upon the prices of lands and town lots owned by the State; such an effect, in fact, was clearly perceptible at the recent sales in Chicago, and will doubtless be felt at every other point.” (Can. Com. Kep., 1900, p. 114.) The Macadam and Plank Koad Across the Swamp from Joliet to Chicago. 0398a “But the heaviest item in the contingent account is the Saganashkee road, amounting to $ At the very commencement of operations it became evident to the board, that, owing to the total absence of a road along the route of the canal, which passes, for several miles, through marshy wet prairie, and heavy timber, some steps must be taken to secure free access to the line, at all seasons of the year. lYith- oiit it, hardships would at times, be much retarded, and con- tractors would naturally seek to indemnify themselves by in- creased prices. At the instance of the acting commissioner he was therefore authorized to make such improvements as, in his opinion, were indispensably necessary. It was be- lieved at that time, that five or six thousand dollars would accomplish the object; bi^t the plan was afterwards extended to its present condition and cost upon the individual respon- sibity of the acting commissioner. He was confident that a ])roper discharge of his duty, as the immediate superintend- ent of the canal, warranted the expenditures; and the other members were unwilling to withhold the means which the nineteenth section of the law would seem to sanction. The board is unanimous, however, in opinion, that the State will eventually be more than reimbursed by the advantages de- rivable from so useful a highway.” (Can. Com. Rep., 1900, p. 118.) 1873 Feom Hepoet of Chief Engineer Wm. Gooding, Dec., 1836 , Effect of Can ah on the Reservoirs Eeeding the Des Plaines. 6399 “Two lines of levels were run across the country lying between Chicago and the Des Plaines river, near the mouth of Portage or Mud Lake, the one commencing near the mouthy of a broad slough, on the north fork of the south branch of Chicago river, at the point where the former canal surveys were commenced, the other on the north branch of said river and a half a mile above the point or the junction of the north and south branches.’’ (Can Com. Rep., 1900, p. 119.) “The former line or the route of the old surveys was found to be far the most favorable, the distance for which the through cut would have to be made, and the depth of cut- ting being much less. This line passes over the ground but little elevated above the surface of Portage lake at an or- dinary stage of water, and which is mostly inundated during the floods of the Des Plaines, the waters of which, it is well known, frequently flows across this low country into the south branch of Chicago river. A particular examination was also made of Portage lake and of the Des Plaines river with . the view of occupying portions of each with the canal should the result prove favorable. But it was found that no saving could be effected by such an arrangement. Portage lake is a succession of ponds on the same level, connected with each other and with the Des Plaines river, and extending aliout six miles toward Chicago river, nearly in the direction of the canal line. The surface of the water at an ordinary stage is lOf feet above Lake Michigan and the mud in the bottom is generally found 5 to 6 feet above Lake Michigan or from 11 to 12 feet above bottom of canal. To excavate the canal to the requisite depth through these ponds and the marshes on their borders, would be attended witli great difficulty and a cost far exceeding that of making the through cut along the borders of the marshes on ground more favorable.” “The examination of the Des Plaines river resulted no less unfavorable than that of Portage lake. The bed of this stream for 131 miles below the point wdiere the canal line enters the valley, except in a few places and for short distances only, is from 8 to 12 feet above bottom of canal, and nothing what- ever could be gained by occupying any portion of the chan- nel, as the difficulty of disposing of or keeping out the waters of the river to make the necessary excavation would more than balance the diminution of the quantity to be excavated by such a location.” (Can. Com. Rep., i900, p. 119.) 6399a “From the examinations made it soon became apparent that the Summit division was likely to prove far more ex- 1874 Extract, — Canal Com. Rep. 1900. — Continued. pensive than any former estimate had made it, and it was be- lieved that if a permanent and adequate supply of water could be provided without cutting down the Summit so as to introduce the waters of Lake Michigan, a change in the ex- isting law should he recommended to the legislature of this State at its next session.” (Can. Com. Rep., 1900, p. 120.) Summit Division. 6400 ^^This division extends from the north fork of the south branch of Chicago creek to the first lock and is also made to include the creek or river section of five miles and 44 58-100 chains in length. The length of the river section is computed from the pier at the mouth of the river to the commencement of the through cut at “the mouth of the broad slough” on the north fork of the south branch on the line as located for the June letting. Towing path, however, is only estimated from the point on the junction of the north and south branches, and will be constructed on the south side of the south branch four miles and sixty-four chains, where it will cross by a towing path bridge at the mouth of the north fork, up which it will continue to the mouth of the slough before mentioned. Little expense will be required except for the towing path until the south branch is crossed, when it will become necessary to cut otf some points, and in some places to deepen the channel between the’ mouth of the north fork and the commencement of the through cut.” (Can. Com. Rep., 1900, p. 121.) “But the law requires that the canal should commence on canal land, and if the branch thus improved be not consid- ered canal, it will be necessary to continue the through cut to the south branch, increasing the length of independent canal forty-eight chains or otherwise the law should be so changed as to permit the most judicious location practicable, which is believed to be on the route first described. A sur- vey has, however, been made in pursuance of instructions re- ceived, from a point on the south branch 44 chains above the crossing proposed at the mouth of the north fork to a point near the Des Plaines river where the line first run, and upon which the estimates were made for the June letting, is in- tersected. Both these lines from the point of starting to the intersection, are straight and occupy similar ground. Upon the first route to the straight line is 74 miles in length, and upon the other route eight miles and eight chains.” (Can. Com. Rep., 1900, p. 121.) “The prairie over which both line pass is very level, and extremely wet except in times of severe drought. The cut- 1875 ting is generally from seventeen to nineteen feet, through a stiff blue clay.’’ “Below the intersection of the tow lines the canal route is down the valley of the Lies Plaines. This river for thirteen or fourteen miles has very little descent, the current at low water being scarcely perceptible, and the land so low along its borders as to be overflowed by every rise of water.” “After the line enters the valJey the direction is changed by a gentle curve and another straight line obtained of three miles and fifty chains in length. Several other long straight lines are obtained on this division and the curves may all be gentle and uniform.” “The depth of cutting continues about the same down the valley to Brewer’s ford as across the wet prairie from Chi- cago river to the Des Plaines, but the canal will be much more expensive as tbe excavation is principally rock. The depth of earth on the rock above the mouth of the Saganaskee swamp was found to be much less than was anticipated and less than was represented in Mr. Bucklin’s report but he may have found a more favorable line than that upon which our examinations have been made.” “A different section of canal is ])resented in crossing the mouth of the Saganaskee swanp) where there is earth to a depth of five or six feet the most of which is a semi-fluid rest- ing on rock. The cutting is here about seventeen feet.” (Can. Com. Pep., 1900, p. 121 .) “Prom this point to the first lock the rock is generally near the surface and a definite location has l)een made whicli it is believed is susceptible of little improvement. The level runs out a short distance after crossing Big Kun which is about IL miles above the first lock and in the bed of which the cutting is two feet. This must, of course, be taken into the canal. (Can. Com. Pep., 1900, p. 121.) 6400a “No estimate has been made for cutting down the tow- ing path as the whole drainage of a considerable extent of country on the southeast side of the canal must be received into it, and it was believed tliat this wmuld sometime be nearly filled so that a towing path below the surface would be use- less.” (Can. Com. Pep., 1900, p. 122.) The DuPage-Dresden Section. Nature of the Construction. Engineer Gooding’s Suggestion that the Piver Be Used. 6401a “About two miles below the crossing of the Du Page a very difficult and expensive portion of the line commences and extends nearly to Dresden, below the mouth of the Kan- 1876 Extract, — Canal Com. Rep. 1900. — Continued. kakee river. The bluffs whicli are from 100 to 150 feet in height approach the river so as to be washed by it at their base, and the towing path bank which will be partly or wholly built in the river at the base of the bluffs will require slope wall to protect it against abrasion from the flood waters of the river, for an aggregate distance of 2 miles and 50 chains.” (Can. Com. Eep., 1900, p. 124.) “The most expensive portion of this difficult section com- mences a short distance above the mouth of the Kankakee river, and continues to the termination of the bluffs. The base of the towing path will be wholly in the river, and the em- bankment must be formed l)y earth taken either from the top of the bluff or from the opposite side of the bluff, for the excavation of any portion of the prison of canal in the bluff would increase its tendency to slip and consequently endanger the canal.” (Can. Com. Eep., 1900, p. 124.) “Heavy protection wall will here be required to resist the force of the ice floods of the Kankakee, but it is believed that the estimate of cost presented is sufficient to construct a canal as permanent as it can well be made along clay bluffs which seem so much inclined to slip. ’ ’ “Another mode of passing the bluffs may be worthy of examination before a final location is made of this part of the line between Dresden and Marseilles.” “A dam may be built at the foot of the bluffs and a tow- ing path constructed along their base so as to pass this dif- ficult portion of the line by slack water at much less ex- pense than the present estimate of an independent canal, and would, undoubtedly, be quite as secure an improvement. By raising the water 15 feet (and a dam of this height can be ren- dered perfectly secure for there is a good rock foundation) the line would be thrown 104 feet lower than the survey made , to lock Xo. 8, of 8 feet lift between the Aux Sable river and Xettle creek, and 21 feet lower than the line surveyed from this lock to locks Xos. 9 and 10, short distance above Mar- seilles. This would involve the necessity of a change in the plan of crossing the Aux Sable, an aqueduct having been es- timated and a dam being required, if the plan suggested here- after be adopted, and the river would be crossed considerably further down. The line below Dresden would probably be rendered more expensive than it is shown by the present es- timate, and some damage would be sustained by the overflow- ing of land about the mouth of the Du Page, but how exten- sive this damage would be, how much expense would be saved at the bluffs, and how much additional cost encountered be- low, are all matters of future investigation.” (Can. Com. Eep., 1900, p. 124.) 1877 ()402a Location of Western Terminal. ‘‘The termination of the canal is made on the corner of section 21 in township 38, N. R. 1 east of the 8d principal meridian. (Con. Com. Rep., 1900, p. 126.) How Engineer Gooding ^s Suggestion Wlvs Acted On. 6406 Shallow Cut High Level with Riv^er Feeders. “This communication and the reports of the canal Com- missioners and their engineer were referred to the commit- tee on canal and canal lands, who on the 15th day of Feb- ruary, 1837, submitted the following report:” “The committee on canal and canal lands, to which was referred the message of the Governor transmitting the annual report of the canal Commissioners; also a report of the com- mittee on roads and canals of the House of Representatives, have had the various matters submitted to them under con- sideration, and submit the following as the result of their deliberations.” “From the examinations of those documents it will be seen, that the (jiiestions presented for consideration naturally bring before the committee inijuiries touching the whole course of many years’ legislation upon the subject of the canal. Questions which ought long since to have been inves- tigated and definitely settled, and which it must be presumed have been fully considered and decided upon by previous leg- islative bodies, ore again presented with the view of an al- most entire change and total reversion of ail ])i*evious legis- lative action. The committee have not thought proper to as- sume the correctness of the policy and measures heretofore adopted without investigating the facts and reasons urged in favor of the change. In proceeding to the investigation of this subject, the committee will endeavor to divest them- selves of all prejudice in favor of preconceived opinions, grow- ing out of previous action in their legislative capacity upon the same subject. It is deemed, proper, however, to state that in the opinion of the committee it is incumbent upon those urging and projiosing changes of action upon a subject of such vast importance to show that such changes are practi- cable, and are consistent with the public faith, and the char- acter and dignity of the State. The first change proposed by the conumittee of the House is upon the Summit division of the canal line, thirtv-two miles in extent.” (Can. Com. Rep., 1900, p. 133.) (1) Shallow Cut High Level With River Feeders. “The y:>roposition is 1o adopt the high level, as run by Mr. Bucklin, ten feet above the surface of Lake Michigan using the Calamic and I)es Plaines rivers for feeders.” 1878 Extract, — Canal Com. Rep. 1900. — Continued. (2) Improvement oe Illinois Eiver to Head of Lake Joliet. ‘‘The second is, to substitute the improvement of the Illi- nois river, from the foot of the rapids to the head of Lake Juliet, for steam navigation by emans of locks and dams.^’ (Can. Com. Eep., 1900, p. 133.) Discussion of High Level Feeder Proposition. “The reasons urged by the committee of the House in favor of the first changes proposed are: First, the large sum which the canal will cost upon the present plan; secondly, the length of time required for its completion; third, the diffi- culties of construction; and fourth, that a better plan can be adopted.^’ “All of these reasons except the last strike at the root of the project, and have been often urged against the policy of engaging in a work of such magnitude, and it is to be re- gretted that the committee did not turn its attention more particularly to the last reason, because, unless it can be made to appear that the changed proposed by the committee is practicable, the arguments with reference to cost, to time and to difficulties of construction, must have their full weight against proceeding further with the canal.” (Can. Com. Eep., 1900, p. 133.) “If the fact can be established, that a canal much less ex- pensive, equally ample, and securing all the advantages and accommodations which could be obtained from the deep cut- ting, can be constructed upon the plan proposed by the 6406a committee of the House, there will be no ground or point left for disjmtation. No citizen of Illinois would be found contending against the adojition of such a plan. If, on the contrary, the plan proposed is impracticable, no one desiring the completion of the canal would be willing to abandon the present plan for such reasons as are urged against it.” (Can. Com. Eep., 1900, p. 134.) Effect of Local Interests. “It is a source of deep, regret that local and sectional in- terests of recent origin, should be made to operate upon a ([uestion of such vital importance to the character, dignity and faith of the State. A spirit of rivalry is perhaps insepara- ble from the existence of towns and villages, whose inhabit- ants imagine that the prosperity of one would be the down- fall of the others. Yet whenever such a spirit shall attempt to exert an influence upon legislative action, upon measures involving both State and National policy, it ought to be met by the re})resentatives of the people with the requisite firm- ness to destroy its influence, and put to shame those who have attempted to use it.” (Can. Com. Eep., 1900, p. 134.) 1879 Senate Committee's Summary of Former History^ (in 1837). ‘‘In the examination of the questions now uncfer consid- eration, the committee will first review the legislative action bearing upon this point. In 1823 an act was passed organ- izing a board of commissioners to consider, devise and adopt the measures requisite to effect the communication by canal and locks between the navigable waters of the Illinois river and Lake Michigan. Five distinguished citizens of the State were constituted the board. An examination and survey were executed under their direction by Messrs. Paul and Post, both of whom stood high as men of science, talents and integ- rity.’^ (Can. Com. Kep., 1900, p. 134.) “In January 1829, an act was passed liy which a board of canal commissioners was organized, who were required to lo- cate the canal to effect a navigable communication between Lake Michigan and the Illinois river. The canal to he at least 40 feet in width at the summit of the water line, 28 feet wide at tlie bottom, and of sufficient depth to contain at least 4 feet of water; and to he furnished with such locks, aqueducts and dams, as might be reipiired to secure a safe and convenient navigation for boats at least 75 feet long, 134 feet wide and drawing 3 feet of water. Xo point is fixed in either of those acts for the termination or commence- ment of the canal; nor v/as aora- tion and leakage. All the documents, except the report made by you in 1830, will be furnished if desired. Very respectfully, your obedient servant, Wm. Thomas, Chairman of the Committee on Canals, etc/’ Can. Com. Rep. 1900, p. 135. The following is Mr. Bucklin’s replv: “Sir: It will give me great x:>leasure to afford you any informa- tion that I may possess in relation to the interesting subject which you have before you. I can, however, do little more than recapitulate the information that has been derived from various sources resj^ecting it.” “The river Des Plaines was gauged at Laughton’s ford, by Messrs. Post and Paul, in the first survey that was ever made of the route of the Illinois and Michigan canal, and the discharge found to be 72,000 cubic feet i^er hour. They also gauged it at the Cache island, eighteen miles below, when they ascertained the discharge to be 117,000 cubic feet per hour. In October, 1829, it was gauged by Dr. Howard, U. S. civil engineer, who i:)laces the discharge at 96,480 cubic feet per hour. At the same x^lace (Laughton’s ford) it was again gauged by Messrs. Harrison k Guion, on the 8th of August, 1830, and found to discharge 60,000 cubic feet per hour. The Calamic river was gauged by me in the month of Sei3tember, 1830, and found to discharge estimated at 320,- 000 cubic feet per hour. It was also gauged by M. Guion, assistant civil engineer, in the service of the United States, about the same time, and the discharge placed by him at 1,033,000 cubic feet per hour. It may be proper to remark here that the fall of 1830 was a season of extraordinary drought.” (Can. Com. Rep., 1900, p. 135.) 6407a “The allowance of 100 cubic feet per mile per minute for eva])oration and filteration wuis assumed by me as the basis of all calculations in deliberating the minimum quantity of water to be provided for the Illinois and Michigan canal.” “The surface of the canal as at present proposed to be constructed, is sixty feet, and bears the jDrox^ortion of one and one-half to one to the surface of the canal as at first ]3roposed. The dej3th of water is now six feet whereas it was formerly four feet, consequently, the pressure of water being as the squares of the heights, and the leakage nearly as the square roots of the heights, the }3ressure will be more than doubled and the leakage (taking into calculation the great surface) increased in x3roposition to one and a half to one. “The quantity of water then that will be required to siq3ply 1882 Extract, — Canal Com. Rep. 1900. — Continued. the evaporation and leakage in a canal of the dimensions pro- posed, will be 150 cubic feet per minute per mile; and with reference to the peculiar character of the country through which the canal passes, I know of nothing which would jus- tify a departure from the established rule, in regulating the supply of water. It is true the upper level is situated in a very wet country, hut the levels below dependent upon the summit for water, are located on ground very badly calcu- lated to retain it, and it is possible that more than the ordi- nary supply may be required.” “If the i^roject of supplying the canal from Lake Michigan he abandoned, and the high level resorted to, the length of canal including feeders, to be supplied with water on the up- per level is fifty-six miles, which will require 8,407 cubic feet per minute to supply the evaporation and leakage, and a fur- ther supply of 2,112 for lockage, making in all a minimum supply of 10,512 cubic feet per minute.” Very respectfully, your obedient servant, J. M. Bug KLIN.” (Can. Com. Eep., 1900, p. 136.) Rights of Indiana in the Calumet. “Aside from the fact that, according to the most authentic information, the Calamic and Des Plaines do not afford suf- ficient water for the use of the canal, it is an admitted fact that the Calamic takes its rise in Indiana. From the latest maps it appears to bend through the corner of Illinois and pass into the lake near the State line. It is contended by some that it formerly passed into the lake in Indiana; it is, however, certain that the State of Indiana may use the water of the river to the exclusion of Illinois. The committee are not advised of any improvement projected by the State of Indiana requiring the use of this river. But the testimony of Lieutenant Burnett herewith submitted, although not con- clusive, tends strongly to prove that a company incorporated by the State of Indiana have projected a canal, which will re- ([uire the use of at least half the water of that stream.” (Can. Com. Rep., 1900, p. 136.) “Upon the point now under consideration the committee have arrived at the following conclusions:” “First — That the Calamic and Desplaines do not afford sufficient water for the use of the canal.” “Second — That if they did it would not be prudent or safe to rely upon the Calamic.” “In arriving at these conclusions the committee have re- lied upon the evidence referred to, consisting of extracts from reports, and other authentic documents. It must be 1883 evident to all those who have given the subject an examina- tion that the point on the Calamic where it is proposed to take the water, is below the summit of the canal line, and only 2 feet 81-100 above the level of the lake. The erection of a dam across the Calamic would, therefore, be absolutely neces- sary, the effects and consequences of which cannot with any certainty be calculated or ascertained. One effect would doubtless be the overflowing of an immense tract of country and a subsequent loss of water by evaporation, absorption, etc.” (Can. Com. Kep., 1900, p. 136.) ‘‘Your committee will now proceed to the examination of the second and third reasons assigned why a change should be made in the Summit division of the canal, viz: the length of time required and the difficulties and cost of construc- tion. There are reasons which have often been urged 6408 and acted upon by those who have been opposed to the pol- icy of the State’s undertaking so stupendous a work; but the judgment of the people has long since been pronounced against their sufficiency. Your committee will not pretend but that there are many difficulties to be encountered in the prosecu- tion of the work and that from five to eight years may be re- quired for its completion. Having arrived at the same con- clusion with all others who have examined the subject (ex- cept the committee of the House) that in order to construct such a canal as the nation has a right to expect, the waters of the lake must be used. The question naturally recurs, shall the State persevere in the work, or shall the project be abandoned? These are the real questions to be considered, in answering the reasons assigned for the proposed change: and as these questions are general and applicable to the whole line of the work, their consideration will be deferred UNTIL THE SECOND PROPOSITION FOR A CHANGE IS CONSIDERED AND DISPOSED OF.” Substance of Eeply. The Nation Has Paid With a Land Grant for a Canal : Therefore, We Will Not Improve the River. “The second reason urged, viz: that the cost of the im- provement will be greatly diminished will not be contro- verted, but the value of that improvement compared with the value of improvement, compared with the value of the canal and the comparative advantages of the two descriptions of improvements, have not been discussed in the report.” (Can. Com. Rep., 1900, p. 137.) “It is a work national in its character, and the people of Illinois should rejoice at the opportunity offered of being instrumental in executing a work of such vast magnitude and .1884 Extract, — Canal Com. Rep. 1900. — Continued. importance. The eyes of the civilized world are resting upon ns with intense interest, for our success in a work which promises such extensive and incalculable advantages to these United States. The people of the United States are looking to the completion of this work, as forming the last link in an endless chain which shall forever hold these United States in the bonds and pledges of union, and your committee ask in the name of the civilized world, in the name of the people of the United States, and in the name of Illinois, that no local, sectional or private interest be consulted in the decision about to be made.’’ (Can. Com. Rep., 1900, p. 137.) “The Magnitude of the Wokk, and the Difficulties At- tending ITS Execution Have Been Long Known and Con- sidered. “The representatives of the people did not engage in the work without a due consideration of those difficulties. The in- terest which the nation has taken in the project is evinced by the act of Congress changing the northern boundary line of the State by the purchase from the Indians of a strip of territory extending from the Illinois to the lake, with an eye single to this project, by the act of Congress granting right of way to the State, and by the subsequent act granting lands of value sufficient to defray the whole cost of the work.” (Can. Com. Rep., 1900, p. 137.) “It has always been regarded as a national work, and the nation having furnished the means for its execution, have a right to expect the work shall be projected and executed in a manner suited to the character and views of an united and enlightened people. The fund for this purpose is admit- ted on all hands to be ample and no citizen of Illinois ought to be willing to see the faith of the State violated, public ex- pectation disappointed, and the beneficence of the national government abused by authorizing any other description of work.” (Can. Com. Rep., 1900, p. 137.) “The question may be confidently asked — why should any one desire to disappoint the hopes and expectations of the nation in regard to the character of this work! Can it be supposed that the nation would have extended assistance by so large and extensive a grant of lands towards the execu- tion of a project ])urely local, a project which at best would not accommodate the trade of Illinois alone five years hence.” (Can. Com. Rep., 1900, p. 137.) “To engage in such a project would be sporting with the bounty of the nation and degrading to the character of the State. AYho among us would be willing to stand forth before an enlightened, liberal and magnanimous nation and pro- 1885 claim the sentiment; the nation has furnished us with means to execute a great national work, and although hy accepting those means we stand pledged to use them for the purpose in- tended, yet as a work of a totally different and greatly in- ferior character, can be executed for onehalf the amount fur- nished, we will make such a work, and vest the other half 6408a of those means in hank stock or in improvements of a character purely local. If there be among us any who would be willing to assume such an attitude, and in the face of the world proclaim such a sentiment, it is to be hoped for the honor of the people and dignity of the State, none such yan be found in the walls of the Legislature. Such a senti- ment strikes at the very foundation of the public faith, and if acted upon would lead to a total subversion and overthrow of our free institutions. The proposition is too monstrous and involves consequences too disastrous to be entertained for a moment, and your committee will not act upon the pre- sumption, nor indulge the idea that any citizen of Illinois will ever be found giving countenance to such a sentiment. Your committee are satisfied that the canal lands will defray all expenditures required in fhe construction of the canal, upon the enlarged plan proposed by the canal commissioners, and they hope to see the time when its navigation will be made free to all the people of these United States.” (Can. Com. Rep., 1900, p. 138.) There should be no question asked in regard to a supply of water from any other source than the lake, so long as it is known that the means furnished by the nation are amply sufficient to execute the work. In the completion of such a project, computations of time should be made with reference to the existence of the Union and not with reference to the growth of a village. If, contraiy to all calculations eight or fif- teen years shall be required for its completion, this would not justify the State or the people in a violation of their plighted faith. The time is not distant when Illinois must stand at the head and in front of all of the western states, and when that time shall arrive, nothing could be a source of greater mortification to her citizens or her sisters than a knowledge that in her infancy she had been guilty of a violation of pub- lic faith.” (Can. Com. Rep., 1900, p. 138.) Interrogatories from the Committee on Roads and Canals TO THE Commissioners and Engineers of the III. & M. Canal With Their Answers. ^Question 1st: — What is the fall from Lake Juliet to the ])resent termination of the canal, and what will be the cost 1886 Extract, — Canal Corn'. Rep. 1900. — Continued. of constructing the canal from said lake to its termination on the present plan!” ‘‘Ans. The fall from the head of Lake Juliet to the present termination of the canal is about 75 feet. Cost of construct- ing the canal from the head of the Lake to the termination — $2,213,557.42.” (Can. Com. Eep., 1900, p. 138.) 6409 ‘‘Question 20. — What would be the cost of construction of slack water navigation from the foot of the rapids on the Illinois, to the head of Lake Juliett, taking Mr. Hurd’s esti- mate as a basis!” “Ans. To estimate the cost of making slack water naviga- tion of the Illinois Eiver with any accuracy without a survey is impracticable; and to assume Mr. Hurd’s estimate as a basis would show a fair comparison of costs between slack water and the Illinois and Michigan Canal, as now estimated; he having estimated lockage (it is believed at $1,500.00 per foot lift and the estimate of lockage on the western division of the canal being $3,000 per foot lift. Other items will also show a great difference.” “Q. 29. AVhat quantity of water will the Calamic discharge per hour, allowing the river to be ninety yards wide, aver- age depth eighteen inches, average current two miles per hour!” ‘‘Ans. 10560 x 270 x 1.5 — 4,276,800 C. feet. (2 miles=10,560 feet — 90 yards=270 feet, 18 inches=1.5 feet.) Multiplying the three together, depth, breadth and velocity gives the cubic feet per time unit.” (Can. Com. Eep., 1900, p. 139.) “Q. 30. What quantity of water do you suppose passes out of the Saganash Swamp and Hrassy Lake, also that por- tion that passes down the Valley of the Stoney Creek as well as that portion of water which empties into the Desplaines Eiver!” “Ans. In seasons of severe drought, not a drop.” (Can. Com. Eep., 1900, p. 139.) 6410 “During the year 1836 the Canal Commissioners con- structed by grading and bridging what was then known as the Saganaskee road, now known as Archer avenue and Archer road, extending from State street, Chicago, to Joliet.” (Can. Com. Eep., 1900, p. 141.) From Annual Eepoet Dec. 13, 1838. Progress in Construction Cutting Off the Swamp on the Southeast. 6412 “The line is now under contract from the Chicago Eiver to the termination of LaSalle, with the exception of about 22 miles of shallow cutting between Dresden and Marseilles 1887 and some other detached parts, amounting by estimate to $1,251,108.15, and a mile and a fraction of excavation in the Saganaskee Swamp, which from the peculiar character of the work, as described in the report of the chief engineer, must either be executed in part by agents of the State or wholly deferred until it can be drained through a series of sections below it. To avert the delay incident to the latter course, the first has been adopted, with orders for the imme- diate preparation of appropriate machinery. Efforts will be made to have everything ready for a commencement by the breaking up of winter. It was once thought that no subdivi- sion of equal length would cost as much or present as many difficulties as the one which stretches through this famous swamp. The semi-final alluvion and vegetable matter of which the swmmp is mostly constituted, are not more forbidding in their aspect than they are treacherous in their texture. Hence, for nearly two years it was impracticable at any sea- son by any mode to penetrate it so thoroughly as to ascertain with certainty its true depth and charcater. The hard freeze of last winter and the low stage of the river and bordering morasses enabled the resident engineer, with a strong party, to traverse and sound every part of them.” (Can. Com. Kep., 1900, p. 145.) ‘Ht was found that the Desplaines could be safely turned into its ancient channel below^ a low island about a mile in length, redeeming by the process some three or four hundred acres of canal land, and securing to the State an important town site, which by any other arrangement, would have fallen on individual property. Convinced of the practicability of turning and dyking the river and that the flood waters of the Saganaskee Valley could be diverted into the Calamic, there was no further hesitation in cancelling the contracts on the original circuitous route and locating a direct line costing upwards of a hundred and twenty thousand dollars less, and possessing other obvious advantages independent of the town site which at no remote period must be w'orth a large sum of money. For details, see reports of the principal and resident engineers.” (Can. Com. Rep., 1900, p. 145.) Refusal to Measure the Hesplaixes ix a Good Year. 0418 ^Mudge M^right arrived at Chicago in the early part of October, and on the 20th of the same month, Mr. Burnett made a detailed report, with a topographical map and estimates, of the quanties of excavation and other work necessary to effect the object on the most favorable route of the country was susceptible. At that time and through the ivhole summer the Desplaines River was generally admitted to he miusually 1888 Extract, — Canal Com. Rep. 1900. — Continued. flush, as was also the Calamic. No gauges were therefore ordered, and consequently those of the Desplaines made by the United States engineers in 1830, and of the Calamic by. Mr. Bucklin, were adopted as the basis of the investigation.” ^ ^ (Can. Com. Eep., 1900, p. 147.) ‘^Gauging It in the Dry Season.” ^‘The past dry season rendered the measuring of the Des- plaines almost unnecessary, since for nearly four months the tightest dam that could be erected would not, at the point for taking out a feeder, have saved water enough to proper a single pair of ordinary mill-stones. Eepeated gaugings from the 20th of July to the 22d of August and it was after- wards still lower, gave an average of less than the measure- ment of 1830.” (Can. Com. Eep., 1900, p. 147.) Swamps and Bluffs. 6413a ‘‘The fifteen sections extending from the Chicago Eiver to the ‘Point of Oaks,’ eight miles and lying through the low wet prairie periodically flooded by the Desplaines Eiver through Mud Lake, have been completely defended against any possible danger from surface water; and are now, by means of those defenses, accessible and tenable at any season of the year. The same plan of drainage and defense is grad- ualh^ progressing from the ‘Point of Oaks’ to the Sanagaskee Swamp, and enough has been done to inspire the fullest con- fidence in the practicability and moderate cost of the work.” (Can. Com. Eep., 1900, p. *148.) “The costly and exposed sections around the base of the Kankakee bluffs are in the hands of experienced contractors, who are known to have executed extensive and more difficult jobs on the St. Lawrence Canal. The safety of the plan of construction is now generally conceded, and the price at which the work was taken was fair. From this point to Marseilles nothing has been let: thence to Ottawa the work is advancing steadilv and will be finished in good time.” (Can. Com. Eep., 1900, p. 148.) Cost of Construction — Value of Lands Equal to Cost. 6415 “It appears from the estimates of the chief engineer as will be seen by an examination of his report that according to the contracts made, adding a full allowance for the. light sections not under contract, the sum of $7,621,442.57 will 1889 cover, with very little variation, every expense for a con- venient, substantial and elegant canal, such as it ought to be for commercial economy, durability and State character. The original estimate of the same engineer, exclusive of the addi- tions at Ottawa and the enlargement of the basin in Chicago, was $8,654,337.51, being $1,032,894.94 more than will be re- quired to complete the work.’’ (Can. Com. Eep., 1900, p. 151.) From Chief Engineer Gooding Effort Dec. 10, 1838. Pro- tection FROM Overflow of Desplaines. ^Gn conclusion, the Commissioners reiterate the opinion, ex- pressed in the first annual report to the Governor, that Gf these lands and town lots be very gradually and cautiuously brought into market, reserving the chief part until the canal shall have been coHipleted, and all its advantages clearly un- derstood, there is more than eough to build it on the present capacious and permanent plan. But, on the contrary, if sales be forced and all the lands be disposed of before their true value be known, there cannot fail to be a deficit of several millions of dollars. Many tracts of land that would not bring more than five or six dollars per acre if sold immediately, may be worth a few years hence, from twenty to one hundred dollars. Innumerable instances of the kind might be adduced, some of them in the vicinity of the canal.” ‘G\ll of which is respectfully submitted. W. F. Thornton, Late President. Jacob Fry, Acting Commissioner. (Can. Com. Eep., 1900, p. 152.) 6415a ^^The part of the line from the south branch of the Chicago Eiver to summit or the Point of Oaks is irow placed in such a situation as to insure its safety from the high water caused by the overflowing of the Desplaines Eiver. ’ ’ ^^This has hitherto been the cause of much trouble and de- lay, and occasioned for a considerable length of time, an entire suspension of the work. A small part of the deep earth cuf- ing in the valley of the. Desplaines, between Summit and the Saganaskee, has also been protected, so that the work may be successfully prosecuted during the seasons of high water.” (Can. Com. Eep., 1900, p. 152.) 1890 Extract, — Canal Com. Rep. 1900. — Continued. Use of River Channel. ‘‘The location of the canal at the Saganaskee Swamp and the plan of constructing it have materially changed since my first estimate was made, and a very decided advantage gained in the expense, in the symmetry of the line, and in the in- creased value of State property. The canal as now located occupies as much of the channel of the river as can be made available upon a straight line. A new channel for the river will be opened on the west side of a low island or peninsula which extends the whole length of Sections 42, 43 and 44, and will occupy nearly the same place where the main channel of the river appears once to have been. An embankment will be made connected with the spoil bank on the west side of the canal at the lower end of Section No. 41 (which is just above the Sag and near the present channel of the ilver) crossing the river from that point to the island, and running thence across the island to a bayou, which will form a part of the new channel; thence parallel with the canal and about twenty-two chains from it, upon the west side of said island to a point near the lower end of it; and thence across the canal upon Section No. 45, where it will be connected with the protection so as to exclude the waters of the river. Parallel with and near the embankment upon the west side of the island, the artificial channel will be made so as to unite the bayou above mentioned wdth one that extends up from the jower end of the island.” (Can. Com. Rep., 1900, p. 152.) ‘‘This channel will be opened 200 feet and all the earth ex- cavation from it deposited upon the island side. It is believed 6416 that the depth of excavation sufficient only to remove the roots will be all that will be necessary; for the whole river being forced into the channel by the embankment above de- scribed, will cause a current sufficiently strong in time of floods to deepen and enlarge it to the requisite dimensions. There is a large, deep basin, or expansion of the river below the channel of sufficient capacity to hold all the deposit that can be washed into it.” (Can. Com. Rep., 1900, p. 153.) A Season of Severe Drought. 6416a ‘‘The value of the water power created here and at other jioints u])on the canal, by drawing a supply of water directly from Lake Michigan, can be fully appreciated after a season of such severe drought as the past. The Desplaines River and many other considerable streams of the country have been nearly dried ii]), and probably three-fourths of the water-mills throiighont a large portion of the United States nave been 1891 standing still for the last three months.” (Can. Com. Eep., 1900, p. 154.) Location of Basin and Dams Nos. 1 and 2. 6417 “Lock number 4 brings the canal to the level formed by the pool of dam number 1. A short distance below said lock, the line runs into the channel of the Desplaines Eiver, which will here be turned to the right and the whole of the water forced into the channel upon the west side of Norman’s Island.” (Can. Com. Kep., 1900, p. 155.) “The rock excavation in the bed of the river, from the point where the canal enters it to the upper end of said island, averages about two and a half feet in depth; but when the river is turned the excavation will lie attended with no particular difficulty. The excavation continues across the island running out at the lower end of it, where the towing path crosses the river, and is thence continued down the right , bank to the guard lock at dam number 2, where the inde- pendent canal again commences. From this point to the ter- mination of the canal, the towing path is upon the left or south side.” (Can. Com Eep., 1900, p. 155.) “From Norman’s Island to dam number 1, which is located upon canal land, just above the town of Juliet, two strong walls with embankments between them, will be constructed upon the east side to confine the water in the pool of the dam. It is proposed to raise these walls and embankments 7 feet above the comb of the dam, to be perfectly secure from the highest floods. From dam number 1, to dam number 2, a similar defense will be required, but of a much less height.” (Can Com. Eep., 1900, p. 155.) DuPage Feeder. “A feeder will be taken into the canal from the Du Page, about three miles above the crossing. The last season has shown this stream to be one of the most permanent in the State, and it can be introduced as a feeder at a very moderate expense.” (Can. Com. Eep., 1900, p. 155.) Slope Wall at Dresden. “From the Du Page to Dresden the line has lieen but 6417a slightly changed since the first survev, but the quantity of slope wall to protect the canal at the Kankakee bluffs has 1892 Extracty — Canal Com. Rep. 1900. — Continued. been considerably increased to render the canal doubly se- cure at this exposed point.” (Can. Com. Eep., 1900, p. 156.) From Chief Engineer Gooding Supplemental Report of Deecmber, 1838. 6419a Progress of A¥ork. ^^The number of laborers engaged upon the canal on the first of December last was not far from 350, and the force was not much augmented till the opening of spring navigation. There are now actually employed upon the canal, and in the various operations immediately connected with canal con- struction, about 1,700 men.” (Can. Com. Rep., 1900, pp. 160-161.) ‘‘High Water in Desplaines — the State Side Ditch. 6420 “The streams for a great part of the year have been very high, particidarly the Desplaines River; but less interrup- tion to the execution of the work has resulted from this cause than might have been anticipated from the unprotected state of most of the sections; and it has been clearly shown that a defense can be made at a moderate expense, that will ren- der the whole work perfectly secure during the highest floods. The high water in the Illinois River has been the cause of serious delay in the excavation of the steamboat basin and channel at the termination, and a large force will be requisite upon the work as soon as a favorable season for operations shall be presented.” (Can. Com. Rep., 1900, p. 161.) “Considerable progress has been made in the deep earth excavation between the Chicago River and the Point of Oaks, but there has been so much water upon the surface since the work was let that the side ditch, which is to be formed on the south side of the canal without the spoil-bank, has not yet been finished, nor but a small part on the bank on the north side, which is to guard against the water that flows from the Desplaines River in time of floods, and which is to be formed of earth excavated from a ditch within the prism of canal.” (Can. Com. Rex)., 1900, p. 161.) 6421 “During the past year ditches have been laid out, placed under contract and partly executed from the Point of Oaks to Chicago River, and from the mouth of Saganaskee swamp to Big run; the object of which is to receive and carry off the water which must otherwise drain into the canal, or ac- cumulate behind the spoil-banks. By the aid of these ditches, the water (except what falls behind the sx)oil-banks) may be 1893 effectualJy prevented from conveying deposit into the canal, and also from interrupting the progress of the work during the construction.^’ (Can. Com. Rep., 1900, p. 163.) From Resident Engineer Talcott’s Report oe Dec. 10, 1838. Canal Overflowed by River — Ditch to Cut Off the Drainage. 6422 ^‘Upon resuming charge of the line in March, 1837, 1 found nearly every section, one to fifteen, inclusive, was the sec- ond time offered for contract in May, 1837. The unfavor- able appearance of the work (nearly one-half of which was overflowed hy the river) prevented much competition, and the proposals received were considered much above the real value of the work. Sections one, two and three only were awarded. The commissioners then determined to defend the work by a continuous embankment on the north side, formed by excavation from the prism of the canal, and on the south by a ditch without the spoil-bank to receive the drainage of the country which is discharged into the south- ernmost branch of Chicago River.” (Can. Com. Rep., 1900, p. 165.) ‘^The season was far advanced before much progress had been made, and the imperfect protection proved no defense against the unusual high water in December, 1837. Nearly every section that had been commenced was overflowed and the work generally suspended during the winter.” (Can. Com. Rep., 1900, p. 166.) Use of River Bed. 6422a ‘‘That part of the line opposite to the Saganaskee valley was examined with reference to adopting the present chan- nel and changing the river to what appears to have been its former channel on the west side of a peninsula island. These examinations were made at a high stage of water, which ren- dered it difficult to make them with the desirable precision. The data presented, however, were considered sufficient to determine the location by avoiding the river, yet approaching it somewhat nearer than the original line, and improving its general direction.” (Can. Com. Rep., 1900, p. 166.) Drainage Reservoirs. 6423 “Between the Point of Oaks and the Saganaskee valley, there will be required four receiving reservoirs for the drain- 1894 Extracf, — Canal Com. Rep. 1900. — Continued. age of the country. These will consist of a pit formed in the rear of the spoil bank, about thirty feet square excavated to two feet below top-water line of canal, with the sides and bottom paved, and communicating with the canal by a nar- row passage. It is believed that these will receive the de- posit usually carried into a canal by the drainage water — forming bars expensive to remove, and frequently proving a serious embarrassment in the navigation.” (Can. Com. Rep., 1900, p. 167.) Progress of Work — Overflow by River. 6423a “When the amount of work performed during the two past years is contrasted with the expectations then formed by many of its friends, some may feel disapi^ointed, yet, when it is considered that the season of 1837 was unusually wet ; that nearly every section that had been commenced was overflowed by the river and the work necessarily suspended until the ensuing spring; the sickness that has prevailed through the past season; that the work is now generally se- cure against the surface water; and that cranes and rail- roads are now successfully employed for removing the rock on nearly every section — it must he admitted that much has been done under the circumstances, and that the work pre- sents a truly flattering prospect for its rapid progress in future.” (Can. Com. Rep., 1900, p. 168.) Pivot Bridges. 6424 “Believing that it would be found advantageous to the commerce of the country for the lake vessels to navigate the canal a^ far as Lockport turning or pivot bridges have been estimated.” (Can. Com. Rep., 1900, p. 168.) From Resident Engineer Wm. Jerome ^s Report, 1838. Joliet Basin — Mouth of River — Location of Canal River AYalls. “For three-fourths of a mile above and nearly through Juliet, the canal occupies the bed of the Desplaines River and is of increased width. The hanks for this distance are to he raised some feet above the ordinary height, and to he ])rotected from the wash of the floods by substantial walls on the inner sides.” “The river is to he raised to the requisite height by two. stone dams at Juliet. AVith the upper dam is connected lock 1895 number 5, of ten feet lift, with a guard of four feet, mak- ing a valuable water ])ower on canal land. With the lower dam is connected a guard lock; at which point the canal leaves the river.” ‘‘Owing to the height of the spring floods, it became ap- parent that the line from Juliet to and over the Du Page Elver would be benefited by being located on a higher level than the former, of some live or six feet. This location varies the line considerably from the original, although, tak- ing the whole distance, the cost of construction is not ma- terially changed; and it is believed that a better location has been obtained. By this means the Du Page Eiver is passed by an aqueduct sufficiently elevated above the highest floods to secure its permanency.” “About three miles above the a(|ueduct, the Du Page is to be received into the canal by a side cut of twenty chains in length, connected with a dam across said riv^er. “There is to be a guard bank extending from the dam up the enst side of the river twenty-six chains. This bank is deemed necessary to prevent serious injury which would otherwise accrue to the canal at this point, from the high floods. Immediately below the aqueduct, are located locks number 6 and 7, with an aggregate lift of fifteen and a half feet. From thence to Dresden, a distance of five miles, the line occupies nearly the ground of the original location. The greater portion of this distance, the canal passes at the foot of the Kankakee bluffs ; some part of the way in the edge of 6424a the Desplaines and Illinois Rivers — the towing path bank to be protected from the great floods and extensive ice jams formed by the uniting of The waters of the Desplaines and Kankakee Eivers, htf a strong irall on the river sided ^ (Can. Com. Eep., 1900, pp. 169-70.) From Consulting Engineer Wright'^s Keport, Oct. 23, 1837. Deep Cut or Shallow Cut. 6426a “From an examination of the various canal documents of the last session of the Legislature, it seems that the ques- tion stands as follows: ‘Shall the feeding water be taken from Lake Michi- gan by a deep cut! or, shall the summit be raised ten feet above the lake, and fed from streams to be brought into it! It has been supposed, and no doubt correctly, that only three streams of water can be brought on the Summit level: First, the Desplaines River, second, the Calumet Eiver; third, the Fox Eiver.’ ‘The Desplaines was not in a proper situation to gauge, as there had. been copious rains; I therefore take 1896 Extract, — Canal Com. Rep. 1900. — Continued. the former measurements of the United States engin- eers, as stated in the reports of the canal committee, at 54,800 cubic feet per hour.’ ‘By calculation it is found that, if twelve boats pass per hour, the lockage water to lock up and down ten feet will he 475,200 feet per hour. If we then add for leakage at the locks (a small item) and for evaporation, we ought not to say less than 500,000 cubic feet of water per hour will be required, when boats are passing as fast as they can be let through (or twelve per hour). It is true that, if boats jDassing each way were to meet so as to pass a boat up with the same water which passed one down, then only half the amount of lockage water should be estimated for the twelve boats per hour, al- though, I believe twelve boats per hour may be passed each way, if the locks are well attended, and are in per- fect order for tilling and discharging the water rapidly.’ ‘These premises being admitted, we have to look for 445,200 cubic feet of water per hour more than the Des- plaines gives us at low water.’ (Can. Com. Eep., 1900, p. 174.) “Taking a view of the whole ground, and looking at the probable cost of the deep cutting, of the low level, nnd the 6427 length of time it will take to accomplish it, and the time the country will lose the benefit; looking also at the great good to the country, and the pecuniary advantage to the 6427a State and the canal, by the creation of water power at Lodq)ort, and Juliet, I have no doubt upon my mind that the present plan of cutting down the Summit, so as to draw feeding water from Lake Michigan, ought to be continued, in preference to any other which I can suggest.” (Can. Com. Eep., 1900, pp. 175, 176.) Use of Desplaixes as Summit Feeder Side Ditch to Cut Off Draixage. 6429a “I would not fill the summit level with the water from the Chicago but let it fill slowly from other streams before I broke this bar of earth; this can be removed by a dredger.” “4th. Is the present plan of drainage a judicious one, and what difficulty may be anticipated from water in excavat- ing the Summit!” “The greatest difficulty in working this division is the Avater, beginning at Chicago Eh^er, and from thence to the end of Section 15. If I have understood the plan of the chief engineer, it is his intention to haA-e a large ditch outside of the spoil-bank, on the upper or southeast side, and this to 1897 be extended as now partly done, to the south branch of the Chicago/’ ‘^It may perhaps be found that some of the sections near the Point of Oaks do not drain freely by this ditch; if so, then they must be drained across the canal. A guard bank of earth must be raised along the north side to keep out the water from the Desplaines River and from the prairie. These precautions will keep out surface water, which is nearly all they have to contend with on this part. Prom the Point of Oaks, on Section 15 to 45, is the most difficult part to drain.” (Can. Com. Rep., 1900, p. 180.) 6430 ‘‘But in order to drain this part, from 15 to 45 effectually, a very large drain nearly or quite the size of a forty-foot canal, should be cut from Section 42 or 43, and extend east- ward through the whole Saganaskee swamp to Stony Creek. This must be cut three feet at the canal and 84 feet at the summit of the swamp, 5 miles east of the canal, and then con- tinue 7 or 8 miles further before it will find a free discharge ;* the water having so far to run must have a large bed, as there will be a great collection of water in heavy rain.” (Can. Com. Rep., 1900, p. 181.) 6433 Damage ekom a Suspension of the Canal Dec., 1839. (Consequent upon the Financial Depression of 1837-8.) Considered pp. 185-189. Cost of the Woek and Value of Lands. From Commissioners’ Report of Dec. 21, 1840. (Can. Com- Rep., 1900, p. 187.) 6433a “The lands, towns, water power, coal mines and stone quarries must bring their improved worth or they will not be sufficient to pay the current interest and discharge any considerable portion of the debts. On this subject the board remain firm in the opinion expressed in their first annual report and repeated in several others, that, ‘if these lands and town lots be gradually and cautiously brought into mar- ket, reserving the chief part until the canal shall have been completed and all its advantages clearly understood, there is enough to build it on its present capacious and permanent plan. But on the contrary, if sales be forced before their true value be known, there cannot fail to be a deficit of sev- eral millions.’ ” (Can. Com. Rep., 1900, p. 188.) 6434a (Can. Com. Rep., 1900, p. 190.) 1898 Extract, — Canal Com. Rep. 1900. — Continued. Legislative Committee's Eepokt. (1840-1.) Summaey of Histoey — Kecommends Completion. “By an Act of Congress of March 30, 1832, the State was authorized to construct the canal over the i^ublic lands and ninety feet of land was given on each side of the canal to the State. The canal was to be begun in three and com- pleted in twelve years. The act gave the State the right to use any materials upon Government lands, necessary to complete the work. Another act was passed March 2, i827, which granted to the State a quantity of land equal to one- half of five sections, on each side of the canal, and reserv- ing each alternate section to the United States. Another act of Congress was passed March 2, 1833, granting to the State the right to construct a railroad in the place of a canal, and extending the time to complete either to five years. In con- sequence of this first grant the Legislature of Illinois ap- pointed, at the session of 1822 and ’23, a board of Canal Commissioners who made an examination and an estimate of the probable cost of the work. This estimate cost, which was only made from a surface survey, without ascertaining the amount of rock excavation, fell a little short of $800,000. This survey cost the State over $10,000. At the same ses- sion, a company, with a capital not exceeding one million, was chartered, to complete the canal, which was to be con- structed and owned by the company for fifty years — after which the State had a right to purchase it, by paying the cost of construction and six per cent, per annum; but in 1826, this act was repealed.” “In 1829, a new board was organized, with power to make further surveys and begin the work. And by a further act of 1831, the commissioners were authorized to lay out towns, and did proceed to lay oft and sell lots in Chicago and Ottawa, and sell lands along the route. They also reported separate statements of the cost of constructing a canal and a rail- road between Lake Michigan and the Illinois Eiver. By esti- mates of the first work they reported it cost at $4,043,086.50 and that of a railroad $1,052,488.19. At the next session the Legislature abolished the office of canal commissioner,/ after these efforts had cost the State $16,972.83. Again at the session of 1834 and ’35, Mr. Forqner, the chairman of the Committee on Internal Improvements, considering the importance of this subject (which had been referred to in the Governor’s message), and witli the feeling of a patriot and the views of an enlightened statesman, again brought this question, by his report, to the consideration of the Sen- ate, and to every citizen who felt the great importance of this enterprise to the present and future prosperitv of our State.” 1899 “The people of Illinois had, in this inanner, and by the sale of the canal lands and the beginning of the work, so far accepted the grant of the General Government, and had duly considered and determined whether they would yield this grant of land to any company, or undertake the canal on the faith and credit of the State.” “The lucid report of Mr. Forquer, of 1835, induced an- other enactment of the Legislature which seemed conclusively to fix the settled policy which the State had determined to pursue, on the acceptance of this grant from the United Statec, and the manner in which the work was to be commenced and completed — that is, on the sole responsibility of the State. But owing to the im])erfection of the act of 1835, the Governor was not entitled to borrow the money neces- sary to begin the work.” “Again in 1836 the people, impressed with the magnitude and value of this work to the growth of our infant hut fast settling State, asked the Legislature to pass another law, empowering the Governor to negotiate a loan on the sole faith of the State. This last act created another board of 6435 canal commissioners, who commenced new surve^^s and esti- mates preparatory to renewed exertion to its completion. Contracts were let, and labor performed to the amount of $35,744.83. In this year the commissioners laid off town lots, at Chicago and sold them to the amount of over $1,000,000 with a common understanding that the canal was to be com- pleted. The action of the Legislature thus far, and in 1836 especially, had furnished to citizens of sister states and to foreigners, sure reasons for emigration here, and the induc- ing and powerful motives for the investment of their cap- ital.” ^ ^ “Again in 1837, the Legislature, coming afresh from their, constituents, after the work was begun, and impressed with its importance, passed an amendatory act of 1836, to aid in its completion. This year there was expended on the canal $356,899.43. The commissioners also sold additional town lots and lands, to assist in paying off the canal debt. These lots and lands, also were sold, as the others had been, with the common understanding that this enterprise was not to languish or fail, by our neglect to put in requisition the available means, so ample, and which had been looked to ultimately, for the final completion of this work. The close relation then, which exists between this long contemplated improvement and the lasting interests of our citizens, and so universally acknowledged and bv few questioned, induces the committee, with the more confidence, to ask its final com^ pletion.” 1900 Extract,— Canal Com. Rep. 1900. — Continued. Canal, vs. Eaileoads. ‘‘The committee will not dwell longer on this branch of the subject, but will hasten to answer a question which has been recently made by some gentlemen of standing, in and out of the Legislature, ‘whether it would not be the part of wisdom now to abandon this canal and construct a rail- road along the route The committee are not insensible to the benefits arising to the country from the completion of well planned railroads. But they have no difficulty in com- ing to a conclusion to prefer canals over railroads.” (Can. Com. Eep., 1900, p. 191.) Gov. Ford’s Message Dec. 8, 1842. Eecommends Completion. Eecommends Change, to High Level — Shallow Cut. 6437a “The canal lands and lots and other property belonging to it, stand upon a different footing. This property was first given to the State in trust to make the canal. It was afterwards appropriated by the General Assembly to that specific object, and solemnly pledged to creditors for the liayment of money heretofore borrowed, and which money has been used in the construction of the canal so far as it has proceeded. Those creditors, therefore, have such a sep- arate and exclusive right to its avails as would not without their consent justify throwing it into an aggregate fund for a general payment of debt. If they should require it we would be bound in duty and honor to surrender it to them. It is, however, believed that no such requisition will be made. They understand their true interest too well ; they know as well as ourselves the importance and profitable character of this great work, and would prefer looking to its probable completion rather than an immediate sacrifice of the means of carrying it on, for ultimate payment. They must, and do understand, that if this property should be sacrificed, the State will have no means or payment for a long time to come; whereas, if the canal progresses, to completion, the lands and lots and water power will be quadrupled in value, and the tolls alone would in a short time pay interest on all the debt contracted for its construction.” (Can. Com. Eep., 1900, p. 196.) 6438 “The sum of four million eight hundred thousand dollars, or thereabouts, has already been expended on this work in its construction, and in the pa 5 unent of interest; seven hun- dred and fifty thousand, five hundred and thirty dollars and forty-two cents, of which has been raised by a sale of lands. 1901 lots, timber and stone; 10,580 acres of land were sold in 1830 for $14,204.87 ; also at the same time 126 lots in Chicago and 9 lots in Ottawa were sold for $4,594. Since 1836, 40,295 acres have been sold for $302,248.40 ; and about 189 lots in La Salle, Ottawa and Lockport for $77,793; stone and timber to the amount of $9,659.00 and sales were made in Chicago and Ot- tawa in 1836 for which cash has been received to the amount of $544,074.97 ; and there is now due the canal fund on account of sales, the sum of $207,682.53.’^ ^On addition to this balance, the property belonging to the canal fund is as follows : Two hundred and thirty thousand, four hundred and sixty-seven acres of land, 370 lots in Chi- cago, 679 in Lockport, 914 in Ottawa, 1,528 in La Salle, other town property to be laid out at Juliet, Du Page and other places ; and the water power on the entire line of the canal ; the whole, valued by the Acting Canal Commissioner, from whom these statistics were derived, at the sum of $5,050,000.00. It is, however, due to the subject to state, that this valuation is predicated upon the hypothesis that the canal is to be com- pleted, or insure prospect thereof.” ‘‘I therefore, respectfully recommend to the General As- sembly, that the further measures to be adopted for the prose- cution of the work, should be upon the plan of a moderate sized high level canal. I am fully sensilhe of the great re- sponsibility assumed by me, in making this recommendation, nothing but a full conviction of our inability to proceed with the enlarged work would justify a change of plan after it has progressed so far as it has. But, in view of our present and prospective want of credit and resources, it does seem that the enlarged work is not to be achieved by any means now in our power; and, indeed, it does seem that we are to choose between reduction and no canal of any description.” (Can. Com. Eep., 1900, p. 197.) Legislative Report — 1842; the Mortgage to Caxal Trustees Proposed. 6438a After careful investigation and close examination of the various plans and suggestions for carrying on the canal the committee have come to the conclusion that there is but one plan which, at the present time, appears practical and worthy of consideration; they have come to this conclusion from an examination of different letters and plans from the most dis- tinguished citizens and capitalists in the City of New York and also from London. The views given in the letters and plans referred to are judicious, sound and practical, and if carried into effect would undoubtedly secure the completion of the 1902 Extract, — Canal Co nr llep. 1900. — Continued. canal and the ultimate payment of the whole debt of the State.” ^ ^ ”If we attempted to rear a structure of too gigantic pro- portions, one which fell of its own cumbrous weight, it does not become us to spend our time in vain regrets and grieve in idleness over our disappointments, but let us gather what yet remains uninjured from the ruins and erect a fabric more pro])ortionate to our means. The proposition for carrying on the canal made by many of the creditors of the State, is as follows:” ”First, the State to convey all the canal lands, town lots, water power, coal beds, stone quarries, and all the canal prop- erty, together with all the tolls that may be derived from transportation upon the canal to trustees, who shall hold the aforesaid property in trust for the canal bondholders. The aforesaid trustees to be appointed as follows: Two on the part of the creditors and one on the part of the State. The canal bondholders are to subscribe a sum sufficient to com- plete the canal to be disbursed by the trustees in the con- struction of the canal. The trustees to have all the power given to the Canal Commissioners. After the canal shall be completed the trustees are to proceed to sell the canal prop- erty from time to time as the demand may require. All re- ceipts of moneys are to be paid, first, to reimburse the sub- scribers for the new advance, and second to pay the bonds they now hold against the State. Those bondholders sub- scribing to have a preference over all others, and those re- fusing to subscribe to be paid last. After the creditors, who may advance the re(]uired means, are paid the amount of subscription and the bonds they now hold, the duties of the Board of Trustees shall cease, and the State again to have the entire control of the canal and its property.” ^ ^ * (Can. CV/in. Bep., 1900, p. 198.) From Senate Eeport Dec. 14, 1842. Proposes Asking Xa- TTONAi. Aid. 6439a ”That in consecpience of the present embarrassed condition of the canal the total suspension of the work and the utter inability of the State to afford any aid, they deem it right and ])roper to ask Congress further aid in carrying on and completing this great and noble improvement. Your com- mittee would respectfully suggest the propriety of so fram- ing the memorial as to place the requisition upon the ground of this canal being a national work, and that it was in con- se((uence of the donation from the General Government that the State was induced to commence this gigantic undertaking,, under the belief that the appro])i*iation of land was sufficient 1903 to complete it. That the donation was based upon the esti- mates of the United States engineers, and that time and fur- ther developments have shown that their estimates covered but a small part of the real cost of this canal. That they believe it was the intention of Congress to have the donation cover the cost of the work, and that now, the State having be- come involved and unable to progress with it. Congress are in honor bound to render further aid.” (Can. Com. Eep., 1900, p. 200.) From Engineer Gooding^s Keport Dec., 1842. ‘‘The cost of the canal may now be represented as fol- 0440 lows, to-wit: The amount of work which has been completed and that which is now under contract $6,751,006.21 The amount of work not under contract 906,665.11 For superintendence and contingencies 350,000.00 Total cost of the canal $8,007,661.32 (Can. Com. Rep., 1900, p. 201.) 6440a (Can. Com. Rep., 1900, p. 202.) ‘ ‘ The total amount of work done is $4,699,492.03 Cost of superintendence and contingencies prop- erly chargeable to construction, account to this time about 210,000.00 Total expense incurred $4,909,492.03 Total amount remaining to be done 3,098,169.29 Of the amount to be done $2,958,169.29 is for unfinished work, and the balance f$140,000) for superintendence and con- tingencies.” “From the time the Illinois and Michigan Canal was first ' projected there seems to have been a difference of opinion amongst its friends in relation to the proper size of the work and plan of its construction. As this difference of opinion still prevails, in order, in some measure to account for it, it may not be improper to allude to the different surveys which have been made, and the different opinions entertained and expressed by those who made or directed them, in relation to this great work.” “The first survey was made in the autumn of 1824, by Col- onels Post and Paul, under the direction of Messrs. Sloo, Brown, A¥est and Smith, Canal Commissioners. An examina- tion of the reports of these gentlemen will show that notwith- standing their ability, their survey and estimates did not give 1904 Extract, — Canal Com. Rep. 1900. — Continued. a correct idea of the obstacles to be overcome in the construc- tion of the canal. In fact, the little that was known of the country previous to the commencement of the examinations, and the very imperfect knowledge which the best informed in this country at that time had in relation to public works of this character, rendered it almost impossible that they should have formed very correct opinions of the magnitude of the undertaking. But low as were their estimates, it is obvious they were higher than the public expected; for the Commis- sioners, after giving the estimates of the engineers, remark, that ‘these estimates, it is true, exceed considerably the gen- eral expectation, and the Commissioners are too well aware of the financial embarrassments of the State, at present, to in- dulge a well founded hope that immediate measures can be adopted for executing a work of so much importance.^’ “The estimates of the five different routes marked out, were as follows, to-wit: “First route is estimated at $716,110.71 Second route is estimated at 639,542.78 Third route is estimated at 668,289.68 Fourth route is estimated at 682,610.20 Fifth route is estimated at 689,746.96 “On the fourth route the supply of water was to be drawn in part from Lake Michigan and on the fifth, entirely from this source ; though upon both plans or routes the deep cut of our present plan must have been encountered.” “The canal, as estimated above, would have been two feet in depth, and twenty in width, less than our present canal.” “The gauges of the different streams from which a supply of water would have been drawn, are given as follows, to-wit:” “Desplaines River at Cache Island. . . .117,000 feet per hour. DuPage “ “ “ ....114,000 “ “ Aux Sable “ “ “ .... 60,000 “ Fox “ “ “ ....450,000 “The engineers remark in relation to these gauges that the ‘results are predicated upon the present stage of water,’ and that the quantities may sometimes be lower.” “From the foregoing extracts it is plain that no difficulty was anticipated in relation to a cheap supply of water for the canal. If the streams on the route would not afford suffi- cient water, it would cost no more to procure a never-failing supply from Lake Michigan than from these sources.” “The surveys of the canal route by the United States engi- neers in 1830 and in 1831, seem to have been made more to ascertain the practicability of the work and the general char^ acter of the route, than with a view to obtain data for a par- ticular estimate of cost. In fact. I believe that no estimate 1905 r 6441 of the cost of the work was submitted until the summer of 1834, at least I have never seen one of an earlier date. Gen. Gratiot submitted his estimate in June, 1834, of the cost of constructing a steamboat canal from Chicago to the mouth of the Little Vermilion River. The dimensions were as follows, to-wit : ’ ’ ‘‘For the first twenty-seven miles from the lake, or to the running out of the lake level, the canal, except two^ miles, is one hundred feet ivide and ten feet deep. The remaining two miles to be distributed in short sections at convenient dis- tances, ‘to be two hundred feet wide; to accommodate boats while detained in changing cargoes without interruption to the navigation.’ The remaining distance of sixh^-five miles ‘to be not less than one hundred feet at the surface and six feet deep. The total cost of this canal was estimated at $4,299,- 439.81.” “The contest in the winter of 1836-7 closed by the passage of a law authorizing the Canal Commissioners to prosecute the work upon the present plan, but requiring them to pro- cure a skillful engineer from abroad to examine and report whether ‘a supply of water from sources within the legitimate authority of the State of Illinois,’ could be procured with- out resorting to the lake, or in other ivords, ivhether a shallow cut, or high level canal could 'he supplied u'ith water, and. if so, whether enough could be gained to make it for the inter- est of the State to change the plan which had already been adopted by law, after a considerable portion of the work had been placed under contract.” “Judge Wright was the eminent engineer whose services were secured by the Commissioners, and the substance of his report upon this subject is well known to the public. From the time his report was published until the work was nearly sus- pended on account of the financial embarrassments of the State, little was said about a change of plan. It was sup- posed that there was nearly or quite canal property enough to complete it upon the deep cut plan, and so long as the State could procure the money to carry on the work, little solicitude was felt as to the plan, though it was still believed by many that it should have been changed, or that the high level should have been adopted at the outset.” “It never having been made a part of my duty to investi- gate this* subject I have hitherto deemed it improper to allude to it in my reports, but at this important crisis in the affairs of the canal, when the work is nearly suspended, the State credit gone, our citizens discouraged, and no hopes entertained of brighter prospects until the completion of this important improvement is rendered certain, I shall present a few facts 1906 Extract, — Canal Com. Rep. 1900. — Continued. and conclusions which I believe may be of some public utility, and which certainly can do no injury to the best interests of the canal. ‘ ‘ The length of the canal from Chicago Eiver, or the waters of Lake Michigan to Marseilles is seventy-four miles. The de- mand for water, upon this line, assuming the usual data (as far as adapted to the present work), adopted by experienced en- gineers in other states, and obtained by actual experiments on several ditferent canals, may be calculated as follows: to-wiC’ “From Section No. 1 to Section 64 inclusive, for evaporation and leakage at lock gates, there being no loss by filtration 400 cubic per min. From Sec. 64 to Marseilles, 47 miles, at 150 cubic feet mile 7,050 “ “ “ Lockage water for locks at each end of of the line, on plan of the high level. .2,174 “ “ “ Total demand 9,924 cubic per min. (Can. Com. Rep., 1900, p. 203.) 6441a “I have calculated no loss by filtration from Chicago River to Section 64, because I have supposed that the canal upon the high level will be sunk so low that the surface of the water, in all cases, will be below the natural surface of the ground and on a level, for most of the distance, as low as the surface • of the Desplaines River. The soil, too, and the rock through which the excavations are made, are of such a character that no danger need be apprehended that any water will leak out or be absorbed on this portion of the work. The evaporation is in reality, almost too small an item to be taken into the account at all, but it is mentioned because it is usually esti- mated in computing the demand for water upon canals.’^ “But the evaporation upon the whole of our canal, calculat- ing the length at ninety-six miles, and the width at sixty feet would be but 264 cubic feet per minute, estimating the evapora- tion during a season of navigation of 240 days to be three feet (which is about the average annual evaporation in this coun- try), or it would be less than three cubic feet per minute per mile.” “The leakage at the lock gates will be but a small tiem, if the work be properly executed and the allowance made is un- doubtedly sufficient. ’ ^ “In calculating the amount of lockage water necessary, I have estimated water sufficient to fill the locks (one of eight and one of ten feet lift) one hundred times in every twenty- four hours. But it is not probable that this amount of water will be necessary for the passage of 100 boats. As nearly an equal number of boats must pass each way during the season of navigation, it is obvious that the chances are nearly equal 1907 that a single lock full of water would pass one boat up and another down. Or, in other words, it is as likely that two boats will meet passing in opposite directions, as that one will closely follow another going in the same direction. It is, there- fore, possible that the quantity of water estimated for 100 lock- ages across the summit, would be sufficient to pass 150 boats.” ‘^Gauges of Calumet River by U. S. Engineers — 17, 281 per min. by Bucklin, 5,333 per min. ‘‘S. Desplaines River Post & Paul, 1950 by Bucklin 1,000 per min. ‘‘S. DuPage River U. S. Engineers, 1065 by Bucklin 6916 per min. ‘‘The aggregate minimum discharge of the three rivers would then be shown thus:” “Calumet, 5,333; Desplaines, 1,000; DuPage, 1,665=7,998 cubic feet per minute.” “This quantity of water was to supply the filtration and evaporation of seventy-four miles of canal, the necessary lock- age water, and the loss at the dams and upon the Calumet feeder. It is, therefore, obvious that there would have l)een barely a supply for a canal of ordinary dimensions, admitting that the water could be introduced (as it might have been) at the points desired.” “The Calumet was gauged on the 17th of May and was found to discharge 8,296 cul)ic feet per minute, and again on the 24th of September, when the quantity was 6,137 cubic feet per minute, and still again on the 17th of October, when the discharge was reduced to 5,634 cubic feet per minute.” “A very satisfactory measurement of the DuPage was ob- tained on the 21st of September and the discharge of water was then found to be 2,928 cubic feet per minute.” (Can. Com. Rep., 1900, p. 204.) 6442 “The construction of the perfectly water tight dam at Juliet has enabled us to ascertain with precision the quantity of water flowing in the Desplaines. This river has been nearly dried up; the measurement on the 20th of September showing 338 cubic feet and on the 21st of the same month 373 cubic feet per minute. ’ ’ “The quantity of water in all these streams continue to dim- inish till the first of November, when the probable quantities would have been about as follows, to-wit:” “In the Calumet River 5,300 cubic feet per min. In the Desplaines River 200 “ In the DuPage River 1,888 “ “ Total 7,300 “ ‘‘The necessary quantity of water to supply the canal from Chicago to Marseilles, is 9,924 cubic feet per minute. This 1908 Extract, — Canal Co)n. Bep. 1900. — Continued. would show a deficiency of 2,624 cubic feet per minute, ad- mitting that all the water could be turned into the canal. There will be some loss at the dam at the Calumet and upon three or four miles of the feeder, and also at the DuPage dam. It would, however, be safe to calculate that there could be in- troduced into the canal from these rivers the following quan- tities, to-wit:’^ ‘‘From the Calumet Piver 4,500 cubic feet per min. From the Desplaines 200 From the DuPage 1,600 Total supply 6,300 Total supply 9,924 Total deficiency 3,624 “There would not, it is true, be so large a deficiency except in extraordinary dry seasons, and in most seasons probably none at all.^’ “Were the deep cut plan to be carried out at an average stage of Lake Michigan there would be an abundant supply of water drawn from the lake, not only for navigation, but for water power. There would be no locks to obstruct the pass- age of boats or lake vessels of good size between Chicago and Lockport. The water power at Lockport and Juliet would be greater and more permanent (at the usual stage of the lake), than it would be upon the shallow cut plan. The navigation of the canal would not be liable to in- terrupt from breaches in dams or embankments, and the plan is much more magnificent. Besides, if the waters of Lake Michigan do not get through this channel to the Mississippi, there is no other through which they can be conducted, and a great deal will have been said for nothing about mingling the waters of the lakes and with those of the Gulf of Mexico.” “In constructing the Illinois and Michigan Canal of the dimensions noiv adopted, reference has generally been had to a future enlargement. Through all the towns and proposed town sites, as Lockport, Juliet, DuPage, Ottawa, etc., the canal is nearly double, and in some instances more than double, the ordinary width. In the deep cutting, the spoil-banks were re- moved a sufficient distance to leave room for the widening of the canal, and in a few instances, if any, would there be any additional damages to be paid for property. However re- mote the period may be when an enlargement of this work will take place, it is certainly the part of wisdom to provide for it now. That it will be enlarged, sooner or later, there can be no doubt, and also that the Illinois River tuill be so improved {an indispensable improvement) as to meet the enlarged ca- pacity of the canal. (Can. Com. Eep., 1900, p. 205.) 1909 6443a Feb. 21 — 1843 — Enactment of ''An Act to provide for tlie completion of the I. & M. Canal and for the payment of the canal debt. March 1 — 1845 — Supplemental Act providing for execution by Governor of "a deed of trust to the said trustees of all the property and etfects mentioned in the tenth section of said act; which said conveyance shall include the lands and lots remaining unsold, donated by the United States to the State of Illinois to aid in the completion of the said canal; to be held in trust as in said act stipulated.’’ "The provision of the above act having been fully com- plied with, a meeting was held at the American Exchange Bank of New York on the 27th day of May, 1845, and William H. Swift and David Leavitt were elected trustees by the sub- scribers to the loans; William H. Swift being by ballot desig- nated as president of the board. ("William H. Swift was con- tinued as president of this board until the termination of the trust in 1871.) On the 10th day of June following, his Excel- lency, Governor Ford, appointed Jacob Fry trustee on behalf of the State of Illinois.” (Can. Com. Bep., 1900, p. 208.) From Beport of Board of Trustees, Nov. 30, 1848. (Can. Com. Bep., 1900, p. 209.) 6444 'G)n the 24th of April, the board while in session at Chi- cago, received a report from the chief engineer, stating that the canal was so far completed as to be in navigable order, that the first boat (the General Fry) had passed over the Sum- mit level from Lockport to Chicago on the 10th of April, and that the first boat which had passed through the entire length of the canal from La Salle to Chicago (the General Thornton owned by Isaac Hardy) had arrived at Chicago on the 23rd of April.” "As a matter of some interest connected with the arrival of this boat, it may be stated that sugar, etc., from New Orleans, brought by the General Thornton to Chicago was received at Buffalo (via Mackinaw) on the 30th of April, some two weeks before the first boat had reached Buffalo by the Erie Canal.” "The chief engineer states that all the work upon the main line of the canal is fully completed according to the original intention of the board, except three inconsiderable items, to- wit : First, some timbers for coping the towpath wall on the Summit; second, the painting of several bridges and aque- ducts; third, the excavation of some 2,500 cubic yards of earth, and the building of 300 cubic yards of work on Sections 195 and 197. The whole cost of these is stated at $3,900. The two first will be finished in the course of the winter, but the 1910 Extract, — Canal Com. Rep. 1^00. — Continued. last cannot be economically done until the water in the Illi- nois River is low.’’ ‘'All the feeders are completed with the exception of the Calumet, which is the main feeder for the Summit level. Very unusual difficulties have been encountered in the excavation of this line, being for a great portion of the distance through a swamp, the material has been dredged out by means of steam excavations, as it was too soft to remove it by digging in the ordinary method, and hence the delay in its completion. It will be done in February and with the opening of naviga- tion in the spring the waters of the Calumet River will be 6444a discharged upon the Summit level. The following table ex- hibits the cost of completing the canal and the feeders ac- cording to the report of the chief engineer:” “Canal proper, including pumping engines, etc $1,159,652.44 Calumet feeder, work done $68,397.22 Calumet feeder to be done, estimate.. 23,102.78 91.500.00 Kankakee feeder 84,573.29 Superintendence and contingencies . . . 66,527.06 Total cost of completion $1,401,192.79 “From Woodruff’s history of Will County: ‘The project of a ship canal to connect the waters of Lake Michigan with the navigable waters of the Illinois River was first suggested during the war of 1812, by some writer in the Xiles Register in 1816. The title to a strip 20 miles wide was obtained of the Indians with a view to such work.’ ” “From the Xorthwest and Chicago, by Rufus Blanchard:” “Previous to 1816 the united tribes of Indians known as Ottawa s, Chippewas and Pottawattomies, claimed all the land between Chicago and the mouth of the Fox River. In order to secure undisputed ])ossession of the river between these two points, a treaty was arranged between these tribes and Xinian Edwards, William Clark and August Chouteau, Com- missioners Plenipotentiary of the United States; this treaty was consummated the 24th day of August, 1816, and was signed by the above named Commissioners and F. Assikinock, otherwise known as Black Partridge, chief of the united tribes. The object in securing this strip was to construct a military road to fascilitate the building of the proposed ship canal.” “From the history of Chicago, by Bross, Book B, 1370, Chicago Public Library:” “At the first session of the Legislature in 1818, Governor Bond brought up the subject of a canal from Lake Michigan to the Illinois River. By an act passed July 14, 1823, a Board 1911 of Canal Commissioners was appointed, and in the autumn of that year a portion of the board, with Col. J. Post of Missouri, as chief engineer, made a tour of reconnoissance. and in the autumn of 1824, Col. E. Paul, an able engineer residing in St. Louis, was also employed. Five different routes were sur- veyed and estimates made of the cost of the canal. The high- est estimate was $716,110.00. In the autumn of 1829 the Com- missioners came to Chicago, have employed James Thompson to survey and lay off the town. His first map bears date of August 4, 1830.’’ ^‘The beginning of the canal was celebrated July 4, 1836, by nearly the whole City of Chicago going up to Bridgeport on the small steamer George W. Dole, towing two schooners^ Dr. Mhn. B. Egan delivered the address and the Hon. The- ophilus W. Smith began the ditch by throwing out the first shovelful of earth.” ‘^Lockport, III., ]\farch 22, 1871.” Messrs. Hoyne, Horton Iloijne, Chicago, 111.’’ ‘ ‘ Gents : — ‘Amours of the 20th inst. asking for a ‘certified copy of survey or location of the canal in 1836 and also in 1846 in^ Sections 29 and 30, T. 39 North, Eange 14 E.’ I send you herewith a diagram showing the location as you desire, cer- tified by A. J. Matthewson, the engineer who made the sur- vey. The change in the location from the survey of 1836 to that upon which the canal was finally constructed was made in 1845 (not in 1846) when oi)erations were commenced under the trust and was authorized by Section 13 of ‘the act to provide for the completion of the Illinois and Michigan Canal, and the pavment of the canal debt,’ approved Februarv 21, 1843.” Truly yours, AVilliam Gooding. ’ ’ (Can. C’om. Kep., 1900, p. 210.) 6448a Kankakee Feeder. (Can. Com. Kep., 1900, p. 218.) “A navigable feeder from the Kankakee Kiver was sur- veyed in 1845 and ordered constructed in 1846. The width to be 40 feet at top water line, 26 feet at bottom, 4 feet deep except at lower end where the depth was to be 5 feet. The slope to be 2 to 1 raised 3 feet above top water line — delivery 2 inches to the mile. This feeder was completed in 1848. The termination of the feeder was at a point on the canal 1,820 feet S. E. of the N. AV. corner of Section 31, Tp. 34 N., E. 9 1912 Extract, — Canal Com. Rep. 1900. — Continiied. passes in a southwest course across the Du Page River where it enters Section 36, Tp. 34 N., R. 8; thence S. W. 1,056 feet to the center section line 538 feet west of the east line of the section; thence south to a point 792 feet north of the south line of Section 36; thence southeast entering Section 3-34-9 again at a point 264 feet north of its southwest corner; crossing' this corner it then passes through Sections 6, 4 and 5 to a 6449 point near .the center of the southeast quarter of Section 9; all in Tp. 33 N., R. 9, whence a dam was constructed across the Kankakee River and from which it received its supply of water.” ‘^The 90 foot reserve was surveyed in 1848 by Artemus J. Mathewson, a plat was made of the feeder and reserve and appear in the plat hook number 2, Canal Records.” ^^The total cost approximated very nearlv to $50,000.” (Can. Com. Rep., 1900, p. 219.) From a Letter by A. J. Gtaleoway, Dated April 20, 1846: ‘‘Canal Office, Lockport, April 20, 1846. “To the Board of Trustees of the Illinois and Michigan Canal. “Gentlemen: — The Secretary of our board has submitted to me the following order to which I have the honor to reply : ‘Ordered, That the Chief Engineer be requested to re- liort to the board the results of the surveys of the sev- eral feeders which have been made since the adjournment of the board on the 24th July last, together with the esti- mated cost of constructing each feeder ; also that he com^ municate his opinion in reference to the most advantage- ous disposition to be made of the several feeders, and the best mode of supplying the different levels with a suffi- ciency of water for the purpose of navigation.’ “The surveys of the feeders were commenced on the 14tk of July last, and finished on the 6th day of November under the immediate direction of the principal assistant, who was aided by Messrs. Benjamin, Mathewson and Elder, Assistant Engineers, Mr. Elder, however, was not called into the service, until the surveys of the Calumet had been completed. “Two feeders from the Kankakee River were surveyed; one commencing at the dam near Wilmington and terminating near lock No. 6 on the main line of canal, and the other at Goose Island, terminating at the main line nearly opposite the upper part of the town of Kankakee. The feeder from AVilmington would be received into the canal on the Joliet level, and the other iqion the Dresden level ; the former being 10.43 and the latter 4.44 miles in length. 1913 ‘^Tlie feeder from Wilmington is rendered expensive by the necessity of constructing more than a mile of it where the base of the tow path will be in the river and the outer slope will require protection, and also by the difficulty of procuring suitable earth for embankment for about three miles of the distance, and the expensive nature of the embankment across the valley of the Desplaines. ‘‘The aqueduct across the Desplaines on this line will also be an expensive structure. The estimated cost of this feeder is $159,401.52. “The lower Kankakee feeder commences at a point very favorable to the construction of a permanent dam, and the route passes over ground well adapted to the cheap and per- manent construction of the work, until it reaches the Des- plaines River, which must be crossed by an aqueduct that will form much the most expensive part of the work. Every part of this feeder, however, can be made permanent at a very moderate cost, the whole estimate amounting to but $48,- 363.68. “The feeders are all intended to be navigable and will be 40 feet wide upon the surface of the water, 26 feet wide upon the bottom, and 4 feet deep, except lower Kankakee feeder, in which the water is intended to be 5 feet dee]). The slopes of the banks will be two to one, and they will be raised 7 feet above bottom or 3 feet above the top water line. A declivity of 2 inches per mile is given on each of the feeders.” (Canal Com. Rep., 1900, p. 219.) From E. W. Willard ^s History, in Report of 1900: “The Kankakee feeder has not been used for several years. The aqueduct that carried the water over the Desplaines and DuPage Rivers has long since gone to decay. There are, how- ever, over 125 acres of good land used for this feeder that now belongs to the State of Illinois.” (Canal Com. Rep., 1900, p. 220.) 6454 “In the years 1847 and 1848 Artemus J. Mathewson, a sur- veyor and engineer, under the authority and direction of the Canal Trustees, surveyed and marked the lines of the 90-foot strip on each side of the canal from one end thereof to the other and prepared and tiled in the office of the Board of Trustees, maps and profiles of said survev.” (Can. Com. Rep., 1900, p. 229.) 6457 “The Mathewson survey of 1847 and 1848 gave the width of the canal and the lines of the reserve the entire length of the canal. See plat books 1, 2 and 3 canal records. Prom La Salle to Joliet the towing path is located on the south side of the canal, and from Joliet to Bridgeport it is on the north side. From Bridgeport to the center of Section 21, Tp. 14 1914 Extract, — Canal Com. Rep. 1900. — Continued. X., E. 14 East, there was reserved from sale 16 feet in width on the south side of the Chicago Eiver for towing purposes, and for a long time this reserve was used for that purpose. The State of Illinois secured title to the canal, its feeders and reserved land through Section 16, known as school sec- tions, Ottawa Center, Marseilles, Joliet, Lemont and Canal- ])ort section (30-39-14), by the congressional acts of 1822, 1827 and 1831, and the legislative enactments of 1823, 1829^ 1831, 1836, 1837 and 1839. See also La Salle County, Will Countv and Canal Eecords 1836 to 1845.” (Can. Com. Eep., 1900, p. 235.) Atlas. The bulky maps and plat exhibits are grouped together in the Atlas. The form and size of these exhibits made it impracticable to have them inserted in the Certificate of Evidence at the pages where they were respectively introduced. It was ascertained from estimates submitted by engravers that the cost of reproducing the atlas of maps in printed form so that each map would appear in this abstract, would be (as nearly as can be anticipated) in excess of $5,000, which has been deemed pro- hibitive. We are, therefore, compelled to submit in lieu of a fuller abstract of the atlas the following description of the different maps, plats and charts with references to the places in the tran- script where the same were introduced in evidence and to the pages where they will be found. As to a few of these no map whatever was available for the certificate of evidence and it became necessary to reproduce them in facsimile in order to preserve them in the certificate of evidence. The few so reproduced are given in the abstract. The few so re- produced were not more important than the others. The necessity for reproducing them once in the certificate of evidence made it possible to reproduce them in the abstract also which is accord- ingly done. Said exhibits are: ‘‘McCullough Exhibit 1.” 6480 (Atlas, p. 3913, referred to and offered in evidence pp. 7 and 716 of the Certificate of Evidence; Trans., pp. 1785, 2505; Abst., pp. 633, 841), is a map of the four townships in Eanges 8, 9 and 10, through which the lower part of the Desplaines runs. It is certified by the Auditor of Public Accounts to be a true copy of the plats of the United States Survey, transferred from the U. S. Surveyor General’s office to this State, ])iirsuant to act of Con- gress. It shows all of tile surveyor’s writings and marks placed upon the original plats. “McCullough 1 A.” 6482 (Atlas p. 3914, referred to and offered in evidence on pp. 446 and 716 of Certificate of Evidence, Trans., })p. 2224, 1915 2505; Abst., pp. 765, 841), is a duplicate of so much of the fore- going as exhibits the river, with certain added matters indicated thereon. Among these are the following: 1. Odd numbered sections are given coloring matter, so as to indicate visually which sections are Canal Sections and which are not. 2. Sites of the localities of a number of towns and town plats are indicated along the banks of the river by other coloring mat- ter and boundary lines. The towns thus indicated are: begin- ning at the confluence of the Kankakee and the Desplaines, the original town of Kankakee, also known as Beardstown. Going up stream, just above Treat’s Island, appear the town plats of ‘^Buffalo” and ^‘Vienna.” These towns were never built up. Further up appears the plats of ‘‘Juliet,” “West Juliet,” “School Section Addition to Juliet”; and further up in Town- ship 36, “Lockport” and the town of “West Lockport.” 3. The locations of a number of islands, dams, bridges and gauges are shown by suitable labels. “McCullough Exhibit 2.” 6484 (Atlas p. 3915, referred to and offered in evidence C. E. pp. 491 and 716; Trans, pp. 2269-2505; Abst., pp. 777-841.) Begins where “McCullough Exhibit 1” leaves off, and proceeding up stream, shows the course of the Desplaines River, — by a similar certified copy of the original Government Survey, — through Town- ships 36 and 37, Range 10; 37 and 38, Range 11; townships 38 and 39, Range 12; Township 39, Ranges 13 and 14. This map also represents Mud Lake. It also sketches in the line labeled “Port- age Road.” “McCullough Exhibit 2 A.” 6486 (Atlas p. 3916, referred to C. E. pp. 477 and 716; Trans. pp. 2255-2505; Abst., pp. 774-841) is a duplicate exhibit of “McCullough’s Exhibit 2” with certain other added matters, in- cluding the following : The Canal Sections are colored, also the sites of a number of towns, laid out on the banks of the stream. The towns here platted upon the banks of the Desplaines prior to March 1, 1839, are Emmetsburg, Keepotaw, which afterwards became Lemont, Desplaines (Archer and Pearson’s Addition) (in Section 14, Township 37), and Summit, in Section 12, Township 38. Just on the border of a widening of the river appears Romeo. 1916 ‘‘Outline Map of AVill County/' 6488 From a j^ublislied atlas known as “AVill County Plat Book” (Atlas p. 3917, referred to C. E. p. 1098; Trans, p. 2887 ; Abst., p. 928). This is page 15 of a popular atlas in general use in Joliet and Will Counties, giving several townships of the county, the location of the principal cities, the villages, lines of railroad, wagon roads and the course of the Desplaines Eiver and Kankakee and Du Page Rivers and the Illinois and Michigan Canal through the county. Upon the bank thereof is page 16, which gives a similar, and enlarged representation of Du Page Township in AVill County. “Outline Map of Channahon Township, AAill Countyl” 6490 (P. 25 of “AA'ill County Plat Book,” Atlas p. 3918, re- ferred to C. E. p. 1098; Trans, p. 2887 ; iAbst., p. 928.) On the back thereof, page 26, is Jackson Township in AVill County. “Alvokd Exhibit I.” 6492 Joliet’s map of 1674 (Reproduced in facsimile from “Be- vue de Geographies ’ for February 1880). (Atlas p. 3919, referred to C. E. p. 184; Trans, p. 1962; Abst., p. 1688.) This map is republished in the “Jesuit Relations and Allied Documents” by Reuben Gold Thwaites, Secretary of the State His- torical Society of AVisconsm, Vol. 59, Lower Canada, Illinois, Ottawas, 1673-1677, at page 86. This map shows the line of the Desplaines and of the Chicago River, as meeting at Mount Joliet, and it labels the passage at the junction of the river, “Portage.” Exhibit I, Andreas, Chicago. ()494 (Atlas ]). 3920, referred to C. E. ]). 209; Trans, p. 1988; Abst., p. 702.) This is a section of Charlevoix’s map of one hundred years later, 1774. It exhibits the Desplaines River lal)el, “R des Illinois.” In the narrow passage between this “R des Illinois” and “Checegau” is the insci‘i])tion, “Portage les Chenes.” f(5l'NTU\' r)fWth<'J.V'r/ \ 1 oi ■f i— — 1917 Exhibit of Long's Report and Map. 6496 (Atlas p. 3921; referred to 0. E. p. 246; Trans, p. 2024; Abst., p. 712.) This is the facsimile reprint of: 1. Major Stephen H. Long, 1819; 2. Report of Graham k Phillips, 1819; 3. The map from Major Long’s ‘Mlxpedition” ; 4. ‘‘Relation of Father Dahlon, 1674.” (For said map see opposite page.) Thevinot's Map, 1681. 6509 (Alvord’s Exhibit 1, Atlas }). 3922; referred to C. E. p. 252; Trans, p. 2030; Abst., p. 713.) This map also exhibits the llesplaines River, the Chicago River, the little lake between the two, connecting them, and the label thereon, “Portage.” 6510 This Thevinot map was published in 1681 by Thevinot, together with an imperfect form of Marquette’s Journal, with the title — Carte de la decouverte foite Pan 1673 dans I’Amerique Septentrionale. It is published in 1859 Jesuit Relations p. 3 54, and also in Bancroft’s. History of the United States. Orr Exhibit 1. 6511 (Atlas page 3923, referred to C. E. page 1098; Trans, p. • 2887; Abst., p. 929.) This is one of the maps of the Illinois & ^Michigan Canal lands, surveyed by A. J. Mathewson in 1846-1847. This is the location of the canal crossing the Desplaines River in Joliet and extending for about one mile along and in the river, and shows among other things both the Kankakee Cut-otf and the Kankakee Feeder. .It is known as the general index plat of the Canal Rec- ords, Plat Book 2. 1918 Ork Exhibit 2. 6513 (Atlas page 3922-a, referred to C. E. page 1098; Trans, p. 2887; Abst., p. 929.) This is the corresponding index page or index plat of Plat Book 2 of the canal records. The two together exhibit the course of the canal from the point where it taps the south branch, just at the Bridgeport junction of the west and south forks, down to the month of the river and below. It shows the old town of Bridgeport at the head of the canal, also the town of Summit, where the canal strikes the Desplaines, the towns of Desplaines and Harmonville on each side of the old Sanganash swamp, through which the Calumet feeder is led from Stony Creek into the canal. Then below that, Athens and Keepotau, adjoining the Desplaines River in Section 20. It shows the extent of Mud Lake and of the Sanganash swamp, which is several times as large as Mud Lake, and both of which empty into the Desplaines River. Orr Exhibit 3. 6515 (Atlas page 3924, referred to C. E. page 1098; Trans, p. 2887; Abst., p. 929.) This is one of the more detailed plats of which the previous was an index. This is a blue print of the Mathewson surv^ey, showing the junction of the Desplaines with the south arm of Mud Lake in Section 12, Township 38, Range 12 East. This plat show's the location of Archer Road, the canal with a 90-foot strip on each side of it, extending directly through La Crosse, both arms of Mud Lake, the outlet of Mud Lake into the Desplaines on one side, and the outlet into the Chicago River on the other. The latter outlet is ^^let out.” This depression ex- tends from the south arm of Mud Lake to the east fork of the south branch of the Chicago River. Upon this Orr Exhibit 3, the enclosed area marked ‘‘Riv. Des Plaines” is contained within a continuous white line on each side, and next to that a little farther away from the center of the river on each side, extends a continuous row of dotted lines. This 1919 represents the meander line of tlie Desplaines River, as surveyed by Mr. Mathwson. Orr Exhibit 4. 6517 (Atlas page 8925, referred to C. E. ]>age 1098; Trans. ]>. 2887; Abst., p. 929.) Extends eastward from where Orr Exhibit 8 left oft' and shows the line of the canal, with the 90-foot strip on each side, the Archer Road and Mud or Portage Lake. This map has divers surveyor’s notes placed thereon signed June 5, 1847, indicating the time of the making of the plat. Orr Exhibit 5. 6519 (Atlas page 8925, refei*red to 0. E. i)age 1098; Trans, p. 2887; Abst., p. 929.) This is a copy of ])age 7 of Plat Book :^1 of Canal Records, and the survey of Section 15, Townshi]) 87 North, Range 11 East. This shows the old state ditch extending across it, labeled ‘^Artificial Channel 200 ft. wide.” Also “Old bed of Desplaines Riv.” Orr Exhibit 6. 6521 (/Vtlas ])age 8926, referred to C. E. i)age 1098; Trans, p. 2887; Abst., p. 929.) This gives a detailed survey of Sections 8, 4 and 5 of Township 88, North Range 18 East. It gives both arms of Mud Lake with the canal and 90-foot strip extending southwise between them, and across the extension of the south arm of Mud I.ake in one place appears the label “This depression extends from the south arm of Mud Lake to the east fork of the S. branch of Chicago River,” and again further on to the east — “This depression leAids from the S. arm of Mud Lake to the E. fork of the S. branch of Chicago River.” 3920 Orr Exhibit 7. 6523 (Atlas page 3927, referred to C. E. page 350; Trans, p. 2128; Abst., p. 749.) This is a tracing plat of the Mathewson canal survey of Section 25, Township 34, showing the junction of the Des- plaines and Kankakee and the Illinois; thence forward with the dotted meander lines on both sides of the Desplaines, as sur- veyed and delineated by State Canal Surveyor Mathewson in 1846-1847. This is at the site of the dam in question. Complainant ^s Exhibit A-1. 6527 (Atlas page 3929, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the plat of the abandoned town of Beards- town or Kankakee, at the confluence of the two rivers, platted in 1835. Complainant Exhibit A-2. 6529 (Atlas page 3930, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the jflate of the abandoned town of Buffalo, platted in 1836. Complainant ^s Exhibit A-3. 6531 (Atlas page 3933, referred to C. E. page 2585; Trans, p. 4422; Abst., ]). 1278.) is a certified copy of the map of the school section addition to Juliet, platted in 1834. Compi.ainant's Exhibit A-4. 6533 (Atlas page 393)2. referred to C. E. page 2585; Trans, p. 4422; Abst., p. 3 278.; is a certified copy of the original plat of the Town of Juliet, platted :May 33, 1834. 1921 Complainant Exhibit A-5. (Atlas page 3933, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) 6535 is a certified copy of tlie plat of the Town of West Juliet laid out January 27, 1835. Complainant ^s Exhibit A-6. (Atlas page 3934, referred to C. E. page 2585; Trans, p. 4422; Abst, p. 1278.) 6537 is a certified copy of the plat of the Town of Vienna laid out September 1, 1835. Complainant ^s Exhibit A-7. (Atlas page 3935, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) 6539 is a certified copy of the plat bordering the Desplaines Eiver of the Town of Lockport, platted November 17, 1837. 6541 Complainant’s Exhibit A-8. (Atlas page 3936, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the plat of the Town of Lockport, laid out September 17, 1836. 6543 Complainant’s Exhibit A-9. (Atlas page 3937, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the plat of the Town of Summit, laid out August 17, 1837. 6545 Complainant’s Exhibit A-10. (Atlas page 3938, referred to C. E. page 2585; Trans, p. 4422; Abst, p. 1278.) is a certified copy of the plat of the iVrcher addition to the Town of Desplaines, platted May 22, 1837. 1922 651:7 C^OMPLAIXANT^S ExHIBlT A-11. (Atlas page 3939, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the plat of the Town of Keepotaw, laid ont July 22, 1836. 6549 Complainant ^s Exhibit A-12. (Atlas page 3940, referred to C. E. page 2585; Trans, p. 4422; Abst., p. 1278.) is a certified copy of the plat of the Town of Emmet sbnrg, laid ont January 5, 1837. 6551 Eudolph Exhibit I. (Atlas page 3941, referred to C. E. page 466; Trans, p. 2244; Abst., p. 771.) This is a plat of the survey of the site of the dam at the con- fluence of the Kankakee and the Desplaines by Emil Rudolph and H. H. Bremer. This plat delineates the meander line of the Des- plaines River along the right bank and shows the cotfer-dam and the progress of the work as it existed April 13; and shows the location of the power house in the cotfer-dam area outside of the meander line. The plat gives other data of the location and is explained in the testimony of surveyors Rudolph and Bremer. 6553 Blue Peint Plat of Township 39, N. R. 12 E. (Atlas page 3942, referred to C. E. pages 482 and 485; Trans, pp. 2260-2263; Abst., p. 775.) This is a plat of the Township, showing the course of the Des- plaines for the six miles north of the point marked ‘‘Head of Navigation,” by the Government survey of 1821. 6555 Hillebband Exhibit 3. (Atlas page 3943, referred to C. E. pages 847 and 1098; Trans, pp. 2636-2887; Abst., jip. 875-928.) This is a large blue print prepared by Mr. Hillebrand, chief draftsman of the Sanitary District of Chicago from field snr- 1923 veys made by the Sanitary District, showing the topography of the Desplaines River, with the Illinois and Kankakee for a dis- tance of about five miles, as the river runs. It is the largest of all the plats and one of the most convenient for exhibiting the general situation at the mouth of the river. It shows: The Illinois and Michigan Canal, parallel to the river; The 90-foot strip on the south side of the canal between it and the river: The Riparian Tract, which is the subject of leases by the Canal Commissioners ; The Kankakee Feeder, and The Kankakee Cut-off; The county and section lines; And numerous topographical data. (In order to utilize this map to the best advantage, it will be helpful to mount it upon the wall, as was done by the trial court.) 6557 Cooley Exhibit 2. (Atlas page 3944, referred to C. E. pages 603 and 607; Trans, pp. 2392-2396; Abst., pp. 811-813.) This is a map of the Desplaines River from Joliet to the mouth, with a profile attached, showing: The bed of the river in the low wmter of 1823, The low wmter of 1901. The high water of 1904, The location and height of the dam, The height of the pool formed thereby. And various geographical data. 6559 Cooley Exhibit 3. (Atlas page 3945, referred to C. E. pages 605 and 607; Trans, pp. 2394-2396; Abst., pp. 812-813.) This is the consolidated profile showing the data heretofore described in Cooley Exhibit 2 ; and also the high water line of 1892 ; the successive lines indicating the height and depth of water produced by 2,000 cubic feet, per second, by 4,000, 6,000, 8,000, 10,000 and 13,000 cubic feet per second. The blue band crossing the consolidated profile between the 1924 height at 4,000 second feet and 6,000 second feet, indicates the characteristic normal depth of the river when receiving in the summer time, 4,000 second feet, and in the winter, 6,000 second feet, from the waters of the Sanitary District. 6561 Blue Print of Boat. Exhibit in deposition of tT. M. Sweaney. (Atlas page 3946, referred to C. E. page 1098; Trans, p. 2887; Abst., 929.) This exhibit shows the typical lines of construction of the mod- ern screw-propeller boat, with its greatest depth at the prow, and so balanced in the water as to carry its prow well down in the water, and the stern rising out of the water to such a height as to afford play room for the screw propeller and rudder in the depth of water between the load line and the bottom of the prow. 6563 Fox Exhibit 1. (Atlas page 3947, referred to C. E. page 1098; Trans, p. 2887; Abst., p. 929.) This is the photograph of the interior of a tunnel-built boat, and shows the tunnel in the boat arch up from the bottom length- wise of the boat ; the water column above the tunnel and the pump engine in the line of the tunnel. This is the boat more fully de- scribed in the Coen patent, and in the testimony of the witness Fox. 6565 Fox Exhibit 2. (Atlas page 3948, referred to C. E. page 1098; Trans, p. 2887; Abst., p. 929.) This is a general external photograph of the same boat as shown in Fox Exhibit 1, showing the lines of an ordinary tunnel boat. 6567 Defendant's Zarley Exhibit 1. (Atlas page 3949, referred to C. E. page 837; Trans, p. 2625; Abst., p. 874.) This is Sheet 13 from the Survey of 1889, reported by Captain 1925 W. Marshall of the U. S. Engineers in 1890, as an Appendix to Executive Document No. 264. It is a duplicate of the exhibit elsewhere set forth as ‘‘Cooley Exhibit 25’’ (viz. Atlas p. 3969; Trans, p. 6608; Abst., 1931). The map is drawn on a horizontal scale of 750 feet to the inch. 6569 Hillebeand Exhibit 1. (Atlas page 3950, referred to C. E. page 847; Trans, p. 2636; Abst., p. 875.) This is a large general map in profile made by Mr. Hillebrand, Chief Draftsman of the Sanitary District of Chicago, exhibiting a map and profiles of the Sanitary and Ship Canal from Chicago to Joliet. It is quite fully described in the testimony of Mr. Hillebrand. The map at the top, among other things, shows the original location of the river, with contour lines, showing the elevations of the land on each side: The Sanitary District Channel, The new channel of the river into which the river was picked up and shoved over to get it out of the way of the Sanitary Dis- trict channel, and which is labeled river diversion”; The Illinois and Michigan Canal, The Calumet Feeder, The old Summit Feeder, which fed water from the Desplaines Eiver into the canal near Summit, whence the water ran both ways, viz.: downward, northeast toward the Chicago Eiver; and downward southwest toward Joliet; The Ogden Ditch, by which the Desplaines Eiver was drained out of its southwesterly course into the Chicago Eiver; The Ogden Dam, wMch partly corrected this depletion; The Old Calumet Feeder, feeding into the canal at the Sag; The controlling works of the Sanitary District at Lockport; The confluence of the Desplaines Eiver, the Sanitary District Channel, and the Illinois and Michigan Canal in Joliet; And the separation of the river and the Canal below. Strip No. 2, below the general map is a profile showing the natural elevations of the land and slopes of the river; and Strip No. 3 gives the location of the river diversion and water eleva- 1926 tions and elevations of the embankment and retaining wall built by the Sanitary District. There are tables of statistics also shown upon this exhibit. Hillebraxd Exhibit 2. 6971 (x\tlas page 3951, referred to C. E. page 847; Trans, p. 2636; Abst., p. 875.) This is a ^‘Map of Joliet and Vicinity,’’ made by the Sanitary District of Chicago, corrected to show improvements made by the Sanitary District up to the end of 1906, and platted March 1907. It shows the new channel of the Desplaines Eicer through upper Joliet into the Basin; The main channel of the Sanitary District; The channel of the Illinois and Michigan Canal; The contour lines of the land; And a multitude of soundings of the Desplaines Eiver down into Lake Joliet. 6574 Eaxd, McXally Map of Chicago. (Atlas page 3952, referred to C. E. page 1098; Trans, p. 2887; Abst., p. 929.) This map is copyrighted, 1905, and shows among other things the location of the Chicago Eiver ; The South Branch; The IVest Branch of the South Branch; The South Branch of the South Branch; And in Section 29, the hairline for Healy’s Slough. It shows the course of the Illinois and Michigan Canal from its junction with the Chicago Eiver near the junction of the forks, westward for about fourteen miles. 'It shows the Desplaines Eiver for a length of 22 miles, north and south, by section lines: The contribution of the Little Desplaines, the Salt Creek in Eiverside, the large double ox-bow loop at Eiverside; The Ogden and Plainfield road and the Xaperville southwest plank road, which cross the river by a bridge at the site of the Hoffman dam; 1927 The old river bed of the Desplaines ; The Ogden Ditch, the Ogden Dam, and the Sanitary District Canal. It also shows the Calumet Feeder and the location of the prin- cipal railroad tracks in the vicinity of the river. Also the location of the Archer road, and up the northeastern- most quarter of it, which was built by the Canal Commissioners, across the Mud Lake region in 1836. 6576 Cooley Exhibit 15, the Seddon Profile. (Atlas page 3953, referred to C. E. ])ages 854-856; Trans, pp. 2643-2645; Abst., p. 876.) This is also marked ‘^Cooley Exhibit 31.” It gives a profile of the Desplaines Eiver from Joliet to its mouth, and then to the Illinois River to LaSalle. It exhibits a datum line of low water discharge, showing a depth of 1.4 feet and flow lines for each 1,000 cubic feet per second above that depth up to 25,000 cubic feet per second, which line was surpassed by the high water of 1892, before the Sanitary District contribution of from 4,000 to 14,000 cubic feet of water per second was received. It shows the location of numerous gauges, and has drawn on it a self-explanatory scale, by James A. Seddon, from the Sanitary District of Chicago, in 1901-2, Proceedings 1328. 6578 Cooley Exhibit 16. (Atlas page 3954, referred to C. E. page 1067; Trans, p. 2856; Abst., p. 920.) This is a map of the watersheds of ‘the Desplaines River, the Calumet River, the Chicago River, and the adjacent shores in Illinois, Wisconsin, and Indiana. It shows an area in the Desplaines basin down to the Sag junc- tion of 687 square miles, and in the Desplaines from Sag Junction to Lockport of 80 square miles more; and in the Chicago basin of 307 square miles more. The map stops at Joliet and does not give the watershed areas below that point. It reproduces for convenient reference a summary of the ‘Won- 1928 tinental Divide Map of 1821,” which appears on McCullough Exhibit 2,” showing the water lines crossing that territory as it stood in 1898. It is the original map of the outlines of the pro- posed Sanitary District of Chicago, compiled a year before the district was organized. 6580 Defendant's Blue Print Exhibit. (Atlas page 3955, referred to C. E. page 1097; Trans, p. 2886; Ahst., p. 928.) This is the blue print which is referred to and made by refer- ence a part of the perpetual flowage contract between the Canal Commissioners and Harold T. Griswold. 6582 Sheet 1 of Plan of Dam. (Atlas page 3956, referred to C. E. page 1208; Trans, p. 2998; Ahst., p. 955.) This exhibits the general arrangement of the proposed dam of the Company at the mouth of the Desplaines Eiver. It shows the Illinois and Michigan Canal and the junction of the Kankakee and Desplaines. 6584 Sheet 2 of the Plan of Dam. (Atlas page 3957, referred to C. E. page 1208; Trans, p. 2998; Abst., p. 955.) This is another view of the same works, and gives the figures for a large number of the defendant’s soundings in the bed of the Desplaines. 6586 WoERMANN Exhibit 1. (Atlas page 3958, referred to C. E. joage 1451; Trans, p. 3241; Abst., 997.) This is a drawing by Millar for AYoermann, a cross-section above Adam’s Dam, and above the proposed dam; made during the trial. May, 1908. 1929 6588 WoERMANN Exhibit 2. (Atlas page 3959, referred to C. E. page 1456; Trans, p. 3246; Abst., p. 998.) Another copy of the Kiefer, Wilson profile. 6590 WoERMANN Exhibit 3. (Atlas page 3960, referred to C. E. page 1497; Trans, p. 3287; Abst., p. 1007.) Sheet 6 of the Illinois and Desplaines Kiver Survey” by United States Engineers, 1900, showing the confluence of the rivers. 6592 Schoolcraft Map. (Atlas page 3961, referred to C. E. page 1756; Trans, p. 3546; Abst., p. 1055.) This map is reproduced by photographic fac-simile. It traces by a dotted line the courses of Mr. Schoolcraft and his party from Detroit, down the St. Clair River, and around the end of Lake Erie, up the Maumee River, thence by portage into Little River, thence into the Wabash and down the Wabash into the Ohio, then leaving the Ohio at Shawneetown, going across the Illinois country by land to St. Louis, thence up the Mississippi River to the mouth of the Illinois, thence up the Illinois to the mouth of the Little Vermillion below Starved Rock, where he left the river and went across country by land to the ford of the Desplaines, and thence to Chicago. 6594 Blue Print of Proposed Earth Embankment to Form Part OF Proposed Dam. (Part of the defendanUs plans of the proposed work.) (Atlas page 3962, referred to C. E. page 2061; Trans, p. 3842; Abst., p. 1140.) The blue print shows a plan for an earth embankment, 112 feet wide at the base, 16 feet wide at the top, and 16 feet high; and the slope above that riprap 4 to 1 on one side and 24 to 1 on the other. This is the proposed private embankment of the defendant as part of its own dam. 1930 6596 Cooley Exhibit 21. (Atlas page 3963, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) This is the “Profile of 1904” made by the Ernst Board of the United States Engineers, and delineated by J. W. Woermann, as- sistant, who was afterwards employed by the defendant. It gives the high and low water marks of 1893^ the low water of 1901, and the high water mark for the years respectively 1892 and 1904. At the extreme shallow point just above the mouth of the Kankakee, the water is shown to be 4 feet deep by the low water mark of 1901 ; and at the extreme shallow point at the head of Treat’s Island, the water is shown to be 2 feet deep by the low water mark of 1901. 6598 Cooley Exhibit 22. (Atlas page 3964, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) This is a blue print of Sheet No. 55, of the “Survey of 1904, by the United States Engineers,” which is a map of the Illinois and Desplaines Eiver, from Lockport, 111., to the mouth of the Illinois, in 58 sheets. Sheet No. 55 shows the Desplaines Kiver and Illinois and Michigan Canal from a point in Section 20, some two miles up stream from the mouth, to the mouth; and the Illinois for about six miles below the mouth of the Desplaines, together with about one mile in length of the Kankakee and the Kankakee Feeder and Cut-off. The soundings and the contour lines are platted on the sheet. 6600 Cooley Exhibit 23. (Atlas page 3965, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) This is sheet No. 56 of the same survey, and exhibits the Des- ])hdnes Diver for a stretch of about 7 miles more, extending from a point in Lake Joliet down past Treat’s Island to a mile or more below the mouth of the Du Page Diver; with similar inscription mid soundings and contour lines. PIJ BLISHED 70-71, C. of E. pp. ! Ex. 2.7. Abst. p. 1931.) 1 this Table. iThe left of Man.l. E.&.S. E. (c,r lett-hanW M O 25 M ^D ^ ^ i o ®^o o ^ Wm 2 h-. P S,*=' 2, ooooooooooo.. - p g O2oa>oi>f‘t>5o2 ookiH g'prS' p ^ W W cctdwtdte> k_itl> M o u-iS"™ (5 0> (0 CT ^2 == = == = ffi 2 P «> ff rt> 2 ^ (-■O ^•o o- ^ p S Sr . o |?ii 2 ffi p . -< -1 P . >>p-. 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CncOCMCOiOrf^MOstfs-Oi-CCtOCOM to M M C045*->4^C0MtO-r>-O5COCOC0C MtOtOp O OC to to Os M to OsMGOMCOrfs.MOitOCtOM4^MlOiCO 05 C0M00OMCC0C05t4^M05 j: _M M mmm (^-COMCtOCOCOOCltO OitOlOlOM M M o tOCOCOtO lOCOMC0CC4^ CO bo b.M w Mtf^b MCOOrfs.OiCOTCnCOOO COits-COOOC CO M 'o5 boCOMM 05 CO CO to C to l4^ c B M MM CCCCO MCCO COIOM M M to M M05 to 2^ CO to to to MCnOC MCOO c'oto Cn CO M CCts COtOM M to CO C M C CO M to M 05 to W 1 p 1 4.0 4.0 1.5 0.6 sland Sm to C OCn OsOitO Os 'o M M bob 31 P,; p M to to JP- jPk to CO (4^ CO to to M to to 05 O' O M bs r to OiM m'o 3 0 'c Os 'm *05 — cr. M M 4^ CO ~'n ■■■ ■ H-COCO C Oi c H- cooo WOCM ® Q3 P ^ B S’ o- a 2 . ‘ S' a«? Htj cT S’ Ms 3 Q o M ►3 *3 N3 to a ® ft- o o ^ M ^ H S 3^ CO CD O 1931 ()602 Cooley Exhibit 24. (Atlas page 3966, referred to C. E. })age 2264; Trans, p. 4100; Abst., 1183.) Sheet No. 57 of the same survey, exhibiting from the upper basin in Joliet to the point taken up by the preceding sheets. The three sheets, 55, 56 and 57, exhibit the river according to the United States Survey of 1904,’’ and the report of 1905, from the upper basin in Joliet to its mouth. 6604 Cooley Exhibit 22A. (Atlas page 3967, referred to C. E. ])age 2264; Trans. ]>. 4100; Abst., p. 1183.) Is No. 11 of the same Survey. It is a general geographical map on a small scale of the country from the mouth of the Du Page Eiver on the Desplaines through the mouth of the Desplaines into the Illinois and down the Illinois to Seneca. The map is a general geographical map, is not made from a direct survey. The section lines do not join, and are not parallel, and are not accurately de- lineated. . 6606 Cooley Exhibit 23 A. (Atlas page 3968, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) Is sheet No. 12 of the same survey, and exhibits the Desplaines River from above Lockport to the mouth of the Du Page River. It is introductory to the detailed surveys. 6608 Cooley^ Exhibit 25. (Atlas page 3969, referred to C. E. page 2264; Trans, p. 4100; Abst., 1183.) This is sheet 13 of the Marshall Report of 1890, exhibiting the re-survey of the Desplaines River at Treat’s Island, to accompany the })rofile of 1883, published by Captain Marshall. 1932 6610 Cooley Exhibit 26. (Atlas page 3970, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) Profile and map of 1883, published by Marshall in 1890, exhib- iting the Desplaines Elver from Joliet to the mouth of the Du- Page Eiver. 6612 Cooley Exhibit 27. (Atlas page 3971, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) This is sheet 16 of the profile of 1883, published by Marshall in 1890, extending from the mouth of the DuPage Eiver down the Du Page and Illinois Eivers to Morris, and exhibiting the site of the proposed dam. These three maps and profiles give the river with the soundings of 1883, and the re-survey af Treat ^s Island by Marshall in 1888, for the entire reach of the river from Dam No. 1 to the mouth. These constitute the profile of 1883, showing the standard of low water from that time forward. 6614 Cooley Exhibit 29. (Atlas page 3972, referred to C. E. page 2264; Trans, p. 4100; Abst., 1183.) Profile of the Illinois Eiver from the head of Lake Joliet to Henry, Illinois, prepared by the Sanitary District of Chicago, in 1894, administration of Engineer Lyman E. Cooley. This map ex- hibits the river itself, and the adjacent country, with contour lines from Joliet to Henry, and has a colored profile drawn at the foot of the map; and it has sketched in the low water line of 1883, the high water of 1892, and other data. It shows that at Treat ^s Island the underlying bed is made up of sand and gravel, and the water is 2+ feet deep at the shallow point. 6616 Cooley Exhibit 30. (Atlas page 3973, referred to C. E. page 2264; Trans, p. 4100; Abst., p. 1183.) 2.g CO ^ <5 S-‘ 05 0 0 3-0 3 oog-5. O C3 P-R N) i-K) H-*lOO^tPOO IC Oi O 05 05 '-vI Cn Oi O K) h-i CO CO to to 05 00 Cn OO CO CO o o o bo bo o o 00 (a i^cooifcow^MOop o> o»oootaooooo«j totooo COhPOxCO 00 to CO 0-10 00005 "^00 05 CO p P- HIM o jecop 'n p h-* 3- -1 005 CO ■ ‘ 'cot to to 00 05 05 bo oo tP05 OO CO I-* h- t O io O 05 C MCOt-kh^l to CO t-* H- t O to O 05 t ^fo O O' pro S.3 Pi% o o !^0 P fo 'I p p tli. 0l05 tOtOCOCO tOCOCll -1 tPtPtfi to o o 00 -1 "to to 05 05 o o o -1 "oc to Oh-^hPCn-l-JCOC0C0O00OlP-t0C00500;C ^ O Op 0050 tOOCO OCHO to OOl-* OOOOtli o' tOtP05 H-COO OOOCnOtOCOCOCOtOtOH-C005COtOtC "Q’o’o'oo OO^ "to COOOiOt-h- "to "to 000-1000. p ^ P- I-' bO 1-^ 1-^ 1-^ M 1-^ M M M M M M M 1-^ H O taCnH‘bdM»Ck.C10MpUp^MpWMpp^^»p>.MN ''^wwbbbbbbt-^bfcob^eoMM^bbtPkbtPJ 'D ^ H- 3- to 4^-0 l^^t^:)^U)OiOlCiOl^P^^4^COt^D^OtOOOl^ OO^t-'CO^t-^'XXI-abotOtOtOobiOtNOC ^ ?r OlO O O? O ^ 00 05 tP to to CO CO 05 o O O ^ 05 00 05 OOO oo Cn05h-‘00-10505000i000i-‘00t^- coo -1 CO 05 05 00OhPtPt0t0C0t0C0C005C0-lC5it0 0:t0 OtO tPOOiCOC;i-ltP.Cn0 0 0500000000i .3 bd “3 p p 3 p . p. to o >5 s coco OiCn CO CO iP o Z Zl t'Zl re 8'=^ 9-8 _ fza0B.j iQSmuniSacT'L 1933 This is a profile made by the Sanitary District of Chicago, as a part of the map of the deep waterway project surveyed by it under the administration of Engineer Cooley. It shows the water in the Chicago, Desplaines and Illinois Eivers. 6618 Cooley Exhibit 35. (Atlas page 3974, referred to C. E. page 2265; Trans, p. 4101 ; Abst., p. 1185.) Is another copy of the Kiefer, Wilson profile of 1867, heretofore described. 6620 Cooley Exhibit 36. (Atlas page 3975, referred to C. E. page 2265; Trans, p. 4101; Abst., p. 1185.) Is the Macomb profile of 1874, heretofore described. 6622 Pkofile Sheet 7 of House Document 192, Eepobt of the Internationai. Deep Waterway Commission. (Atlas page 3975a, referred to C. E. page 2265; Trans, p. 4101; Abst., 1185.) Is a profile of Lake Ontario and the St. Lawrence Liver from the Cornwall Eapids, through Ogdensburg, to St. Leges. This was prepared by assistant Edgar Williams under the direction of Lyman E. Cooley of the International Deep Waterway Commis- sion, in 1896. 6624 Profile Sheet 8 of House Document 192, Eeport of the International Deep AVaterway Commission. (Atlas page 3976, referred to C. E. page 2265; Trans, p. 4101; Abst., p. 1185.) Continues the profile of the St. Lawrence from Lake St. Frances through the Soulange and Cedar Eapids, through the Split Lock Cascades, through Lake Ontario and the La Chine Eapids to Mon- treal. This was made by the United States Deep AVaterway Com- mission, drawn by Air. AVilliams under the direction of Mr. Cooley in 1896. 1934 6626 Cooley Exhibit 37. (Atlas page 3976a, referred to C. E. page 2286; Trairs. p. 4122; Abst., p. 1188.) Is the Continental Waterway profile from the Gulf of St. Law- rence to the Gulf of Mexico, heretofore described. The list of exhibits marked 'AMoley Exhibit 15’’ to ^‘Cooley Ex- hibit 37” were all used by Engineer Cooley in the construction of his consolidated profile. 6628 Wheeler Exhibit 1. (Atlas page 3877, referred to C. E. page 2458; Trans, p. 4294; Abst., p. 1241.) Is a cross-section of the Hennepin Canal, where it was con- structed in the bed of Rock River. 6630 M^oermann Exhibit June 8. (Atlas page 3978, referred to C. E. page 2483; Trans, p. 4319; Abst., p. 1247.) This is another cross-section prepared by Mr. Woermann of the site above Adam’s Dam, and above the proposed dam. 6632 Snyder Exhibit A. (Atlas page 3979, referred to C. E. pages 2634-2639; Trans, pp. 4471-4476; Abst., p. 1291.) This is a photographic representation of the Canal Record copy of the Government Survey, which is more fully shown on ‘AIcCul- lough Exhibit 1,” of the township embracing the site of the dam. 6634 Woermann Exhibit 4. (Atlas page 3980, referred to C. E. ])age 3072; Trans. ]). 4906; Abst., p. 1452.) This is a map of the Desplaines River from Lockport to its mouth, prepared by Mr. Millar, under the directions of Mr. Mmer- mann during the progress of the trial, upon which the defendant has sketched in suggestions of dams and bridges upon the river. 1935 6636 WoERMANN Exhibit A, June 13, 1908. (Atlas page 3981, referred to C. E. page 3096; Trans, p. 4930; Abst., p. 1458.) Tills is a map of the Kankakee Elver Valley, prepared during the progress of the trial by Mr. Woermann from the atlases of Grundj^ and Will Counties, with contour lines, sketched in from the survey of 1905. It shows the Kankakee and the Desplaines Elvers from their confluence sufficiently up stream to show the whole length of both the Kankakee Feeder, running from the Kankakee Eailway into the canal ; and the Kankakee Cut-off running from the Desplaines Elver into the Kankakee Eiver. 6638 Woermann Exhibit B, June 13, 1908. (Atlas page 3982, referred to C. E. page 3133; Trans, p. 4967; Abst., p. 1471.) Is a map of the Illinois Eiver from Chicago to Peoria, and of the Illinois and Michigan Canal, reduced from the Wilson Survey of 1867, by United States Engineers Lydacker and Liljencrantz in February, 1878. 6640 Woermann Exhibit C, June 13, 1908. (Atlas page 3983, referred to C. E. page 3134; Trans, p. 4968; Abst., p. 1471.) This is a portion of the Wilson Profile, resketched by Mr. Woer- mann during the trial. 6642 Woermann Exhibit D, June 13, 1908. (Atlas page 3984, referred to C. E. page 3137 ; Trans, p. 4971 ; Abst., p. 1472.) Is the Woerman profile on millimeter paper. 6644 Woermann Exhibit 1, June 15, 1908. (Atlas .page 3985, referred to C. E. page 3205; Trans, p. 5039; Abst., p. 1498.) 1936 This is a colored map purporting to represent the area of land owned or controlled by the defendant, including the whole of the area of the bed of the Desplaines Eiver from its mouth to the northern boundary of Section 21, some four miles up stream, and the whole of the riparian tract and 90-foot strip of the canal. 6646 WoEKMANN Exhibit 2, June 15, 1908. (Atlas page 3986 referred to C. E. page 3205; Trans, p. 5039; Abst., p. 1498.) This is a continuation of the exhibit of lands owned or controlled by the defendant, exhibiting the whole of the bed of the river and the 90-foot strip, where the canal adjoins the river to the north line of Section 11, one-half mile above the head of Treat ^s Island. 6648 Exhibit 1, June 16. (Atlas page 3987, referred to C. E. page 3346; Trans, p. 5180; Abst., p. 1550.) This is the Eand, McNally Map of Oregon. 6650 Exhibit 2, June 16. (Atlas page 3988, referred to C. E. page 3346; Trans, p. 5180; Abst., p. 1550.) The Eand, McNally map of Washington. These two maj)s were used in connection with the testimony of Witness Gray, descriptive of navigation upon the Columbia and Snake Eivers. 6652 Defendax't^s Exhibit of Tax Eecoeds. (Atlas page 3989, referred to C. E. page 3394; Trans, p. 5228; Abst., p. 1565.) This is a true copy exhibiting the list of taxable real estate in Grundy County, embracing 51 pages, certified to be a ^Grue, perfect and complete cop}" of the collector’s books of the general taxes of the years from 1857 to 1907, so far as the collector’s books relate to the premises described.” 1937 6707 Defendant's Canal Trustees^ Sub-Plat. (Atlas page 3990, referred to C. E. page 3469; Trans, p. 5303; Abst., p. 1606.) A tracing map of the North Branch of the Chicago Kiver in the Canal Trustees’ Subdivision of adjacent property. 6712 Defendant's Canal Trustees^ Sub-Plat 3. (Atlas page 3991, referred to C. E. page 3470; Trans, p. 5304; Abst., p. 1607.) A tracing map of the South Branch of the Chicago Eiver, with the Canal Trustees’ Subdivision of the adjacent lands. 6718 Defendant’s Canal Trustees’ Sub-Plat 2. (Atlas page 3992, referred to C. E. page 3484; Trans, p. 5318; Abst., p. 1611.) A tracing map of the South Branch of the Chicago Eiver, with the Canal Trustees’ Subdivision of adjacent land. These three exhibits last mentioned are accompanied by certifi- cates of surveyors. In the case of No. 1 and 3, the latter being by A. J. Mathewson, May 18, 1852. 6721 Map of Eock Island Eapids. (Atlas page 3993, referred to C. E. page 3494; Trans, p. 5328; Abst., 1615.) This is a facsimile of the map of the Eock Island Eapids of the Mississippi Eiver, surveyed by Lieut. Eobert E. Lee of the Corps of Engineers, September and October, 1837, published by the United States Government in the Eeport of Chief of Engineers, 1886. 1938 6723 Second Map of Eock Island Eapids, (Atlas page 3993A, referred to C. E. page 3503; Trans, p. 5337; Abst., p. 1619.) Accompanying the United States Engineer’s Eeport of 1880, part II, page 1537. On opposite page is shown said map. r JmfjrorrjnenI or c<( It o v/( I S Icirrd RfjrjJlU'*. SSaSao. %aoaoo ROCK ISLAN! « TTiTT^ri DAVENPORT 3942 6725 Marquette's Map. (Atlas page 3994, referred to C. E. page 3515; Trans, p. 5349; Abst., p. 1624.) Taken from tlie United States Engineer’s Eeport of 1886. This is a facsimile of the autograph map of the Mississippi, — the Con- ception Eiver, drawn by Father Marquette at the time of his voy- age through the region, and preserved in St. Mary’s College, Mon- treal. Copy of said map is shown on opposite page. 1943 JVciA/'en\3t Itepof't Q/% Hfp'cr PLATF I a UX S(xCc-J^ ^'3.0 u &j c<^y^c ^ 47 4-6 ■44 4 3 LA € JyPE/HE VH DE r^^c 'y ^"9Trr O70//tAN7A ^ 1946 6727 Map of the Fox River. (Atlas page 3995, referred to C. E. page 3519; Trans, p. 5353; Abst., p. 1625.) From United States Engineers^ Report of 1876. This gives the map of the route pursued by Father Marquette, by the French voyageurs, by the batteaux and Durham boat navigation, prior to the improvement of the Fox. It gives the profile of the Fox River, drawn by John Warren, exhibiting a fall of 169 feet from Neenah at the head of Winnebag Rapids - down to Green Bay, in a distance of 30 miles. Copy of said map is shown on opposite page. Mcrfe A 1950 6729 Map and Peofile of Allegheny Kiver. (Atlas page 3996, referred to C. E. page 3531; Trans, p. 5365; Abst., p. 1630.) taken from the Eeport of United States Engineers’ of 1895. It exhibits a fall of 50 feet in 30 miles, concentrated in six principal points in a state of nature and distributed by locks and dams into six pools. Copy of said map is shown on opposite page. Eng 54 1 1953 6731 Certificate of Judge. 6732 Certificate of Clerk. Assignment of Errors. In the Supreme Court of Illinois. To the October Term, A. D. 1908. The People of the State of Illinois on the relation of Hon. Charles S. I)eneen, Governor, and Hon. Wm. II. Stead, At- ney General, Appellant, vs. Appeal from the y Circuit Court in and for Grundy County. The Economy Light and Power Company, Appellee. ^ Now comes the People of the State of Illinois on the relation of Charles S. Heneen, Governor and William II. Stead, Attorney General, appellant herein and complainant in the court below, by William H. Stead, Attorney General, and Walter Peeves and Merritt Starr, counsel for the people, and shows that in the rec- ord and proceedings in the above entitled cause in the court be- low and in the decree made by the tourt below herein June 27, 1908, manifest error has occurred to the prejudice of the com- plainant appellant in this to-wit: 1. The court erred in admitting improper evidence in behalf of the defendant, against the objection of this complainant. 2. The court erred in rejecting proper evidence offered by this complainant. 3. The court erred in dissolving the temporary injunction. 4. The court erred in not making the temparory injunction permanent. 5. The court erred in not holding each, every, and all of the contracts and leases made between the Canal Commissioners of the Illinois and Michigan Canal and Harold T. Griswold, and which contracts and leases were assigned by said Griswold to the defendant, respectively, void. 1954 6. The court erred in dismissing the complainant’s informa- tion or bill of complaint. 7. The court below erred in not finding and decreeing the equities in said cause to he with the complainant. 8. The court erred in not finding and decreeing that by the instrument set forth as Exhibit A of said information or hill of complaint (for convenience called ^'the Perpetual Flowage Con- tract”) the Canal Commissioners assumed to grant a perpetual right of flowage in and over the ninety-fcot strip of land adjacent to the Illinois and Michigan Canal. 9. The court erred in not finding and decreeing that by the instrument set forth as Exhibit A to said information or bill of complaint the Canal Commissioners of Illinois assumed to grant a perpetual right of flowage in and over the certain other real estate described in said instrument. 10. The court below erred in not finding and decreeing that said instrument set forth as Exhibit A to said information or bill of complaint was void. 11. The court erred in not finding and decreeing that by said instrument set up as Exhibit A to said information or bill of complaint said Canal Commissioners of Illinois without right, without power and without warrant of law assumed to authorize the party of the second part thereto and his assigns, to do the following acts among others, and each of them, respectively, to- wit : (1) To build and maintain in perpetuity a water power dam and other works in, upon and across the Desplaines Piver at and near its mouth and upon the real estate de- scribed in said instrument. (2) To attach and maintain in perpetuity the water-power dam to the towpath and canal emljankment of the Illinois and Michigan Canal, the pro])erty of the State of Illinois, at the site of such y)roposed dam, and divert said canal em- bankment from its necessary and lawful use in retaining the canal waters in place. (3) To flood in perpetuity the canal eml)anknient at the site of such dam and above the same and use tlie canal em- bankment in perpetuity as a retaining wall for the water power pool. (4) To flood in perpetuity the reserve ninety-foot strip \ 1955 of land bordering the Illinois and Michigan Canal at the site of such proposed dam and for several miles up stream above said proposed dam. (5) To flood in perpetuity the canal riparian lands be- tween the Desplaines liiver and the canal. (6) To raise the towpatli of said canal and attach and enclose a levee thereto and use the gravel and other ma- terial, building stone and piers of the canal and its a(iue- duct in constructing such works and perpetually maintain the same. (7) To enter upon and fill in portions of the Illinois and Michigan Canal in perpetuity. (8) To divert and turn back from the Desplaines liiver the tributary stream known as the ‘Dvankakee Cut-off” and deplete the river thereby and make the Kankakee cut-off run backward into the Kankakee Diver as an outlet for s])illway for the waters of the water power pool to be created ))y said proposed dam. (9) To convert the feeder of the Illinois and Michigan Canal, commonly called the Kankakee Feeder, into a feeder of the water power pool, and in so doing to excavate and re- move and destroy large j)ortions of the canal feeder ac- quired and constructed l)y tlie State as part of the canal. And the court erred in not finding and decreeing as to each of said proposed acts and works resi)ectively that the same was inherently dangerous to the Illinois and Michigan Canal and l)e- yond the power of the Canal Commissioners to authorize, grant or permit: — and in not finding and decreeing that said proposed acts and works collectively were inherently dangerous to the said Canal. 12. The court erred in not finding and decreeing that said flowage contract. Exhibit A, was ineffectual and without right in so far as it assumed to grant a riglit to do the acts and maintain the works therein mentioned in perpetuity. 13. The court below erred in not finding and decreeing that by the instrument in writing Exhilht B of said information or bill of complaint (for convenience called ^Dhe Forty Year Lease”) the Canal Commissioners of Illinois assumed to let and lease the canal property of the State, to-wit, the ninety-foot strip adja- cent thereto, described in said Exhibit B, for the term of twenty years with the first right of renewal for twenty years more. 14. The court below erred in not finding and decreeing that by the instrument in writing. Exhibit B of si 1956 bill of complaint the Canal Commissioners of Illinois assumed to let and lease the canal property of the State to-wit : That part of the north half of Section 31, lying south of the ninety-foot reserve strip along the towpath side of said canal, described in said Exhibit B for the term of twenty years with the first right of renewal for twenty years more. 15. The court erred in not finding and decreeing that said forty year lease. Exhibit B, was ineffectual and void in so far as it purported to grant, let and confer to and upon the defendant any rights in excess of the original term of twenty years. 16. The court erred in not finding and decreeing that said forty year lease. Exhibit B to said information or bill of complaint, conferred no right to overflow or flood or maintain a standing IDool of water upon, any of the lands described in said instrument. 17. The court erred in not finding and decreeing that in and by the instrument set up in said information or bill of complaint as Exhibit C (and for convenience called ‘‘the Kankakee Feeder Lease and River Contract”) the Canal Commissioners of Illi- nois without right and without warrant or authority of law as- sumed to grant to the party of the second part therein the right to use said Kankakee Feeder as a tributary to the proposed water power plant for a term of twenty years with provision for the first right of renewal for twenty years more (subject, how- ever, to the right of cancellation), and to appropriate the waters of the Kankakee River and empty them into the defendant’s water power i^ool above its dam in the Desplaines River instead of letting them flow naturally into the Illinois River below. 18. The court erred in not finding and decreeing that in and by the instrument set up as Exhibit K to said information or bill of complaint (for convenience called “the Pole Line Contract”) the Canal Commissioners of Illinois without warrant of law and without right assumed to let and grant to the party of the second part thereto, the right and authority and estate of maintaining a line of poles and wires for the transmission of power, twenty- five miles long upon the towpath of the Illinois and Michigan Canal. 19. The court erred in not finding and decreeing that the Ca- 1957 nal Commissioners of Illinois liacl witlioiit warrant of law and without right wrongfully assumed to sell by the act of an em- ployee, and by the instrument set up as Exhibit J. to said in- formation or bill of comi)laint wrongfully assum-jd to convey the real estate canal lands therein described. 20. The court erred in not finding and decreeing that the title to the bed of the Desplaines Kiver in Section 25, Township 31, Kange 8 East of the Third Principal Meridian in Grundy County, Illinois, where the defendant appellee proposes to construct said water power dam, is in the people of the State of Illinois, and in not holding that the people of the State of Illinois owned the bed of the river at this place and that the ]>roposed dam will be a trespass and a purpresture upon its property and sovereign rights. 21. The court erred in not finding and decreeing that the Des- plaines liiver at the place in question in Section 25, Township 34, Range 8 East of the Third Princi])al Meridian in Grundy. County, Illinois, and from its connection with the Drainage Ca- nal of the Sanitary District of Chicago to its confluence with the Kankakee Kiver, is a navigable stream and that the erection of the proposed dam will prevent the use of the river and con- stitute a peraianent nuisance. 22. The court erred in not finding and decreeing that the Illi- nois Kiver from the confluence of the Desplaines and Kankakee Rivers downwards is a navigable stream. 23. The court erred in not decreeing a perpetual injunction against the erection of the proposed dam. 24. The court erred in not requiring of the defendant the abatement of the constructions already placed in the Desplaines Kiver by the defendant. 25. The finding and decree of the court is against the evi- dence. 26. The finding and decree of the court is against the law. By reason whereof, the complainant prays that said decree may be reversed, and said cause remanded with instructions to 1958 enter a decree for a permanent injunction in accordance with the prayer of the complainant’s information or bill of complaint, etc. By W. H. Stead, Attorney General, and Walter Reeves, Merritt Starr, Special Counsel for the Complainant.